The obligation on the Government to consider the detenu's representation without delay as a fundamental right under Article 22 of the constitution.

JUDGMENT :

1. The District Magistrate, Pulwama, vide order No. 69/DMP/PSA/2019, dated 19.07.2022, detained Sahil Nisar Malik, S/o Nisar Ahmad Malik, R/o New Colony, Pulwama, Tehsil and District Pulwama, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, to prevent him from acting in a manner prejudicial to the security of the State. This order of detention is challenged by the detenu through his father, Nisar Ahmad Malik.

2. The detenu has assailed the impugned order of detention on the grounds that; (a) the allegations made in the grounds of detention have no nexus with the detenu as the allegations made are vague, non-existent against which no representation can be made; (b) the Detaining Authority has not prepared the grounds of detention itself, therefore, there is total non-application of mind; (c) the detenu has not been furnished all the material relied upon by the Detaining Authority and the representation submitted by the detenu before the respondent No. 2 has not been considered; (d) the Detaining Authority has not given any compelling reasons for passing the order of detention.

3. Learned counsel for the detenu submits that the detenu was already admitted to bail in FIR No. 203 of 2021 registered with the Police Station, Pulwama, and the Detaining Authority, despite having knowledge of the same has not given any compelling reason for passing the order of detention. There was no application of mind while detaining the detenu and also there is no proximity between the alleged activity and the detention order, as such, the same is unjustified, unreasonable and deserves to be quashed.

4. Mr. Furqan Yaqub, learned G.A. has filed the reply affidavit as well as produced the detention record. It is submitted by him that the detenu was detained vide detention order No. 69/DMP/PSA/2019 dated 19.07.2022, in accordance with the provisions of the Jammu and Kashmir Public Safety Act, 1978. He further submitted that the activities of the detenu were highly prejudicial to the maintenance of the security of the State, as such, the detenu was detained under the said Act. All the statutory requirements and constitutional guarantees were fulfilled and complied with by the Detaining Authority.

5. Heard learned counsel for the parties and also perused the material on record.

6. The contention of the detenu that he has made a representation through his father on 04.08.2022 and same has not been considered, therefore, valuable fundamental rights under Article 22 of the constitution have been violated. The representation dated 04.08.2022 along with the receipt is on record. The respondents have not made any averment with regard to the receipt of the representation and its consideration and also there is nothing on record to suggest that the said representation has been considered, therefore, there is a substance in the submission of learned counsel for the detenu. This non-consideration of the representation has vitiated the order of detention.

7. It is well settled that right of the detenu to make a representation and to have the same considered by the competent authority is a fundamental right guaranteed to a person under Constitution and the infraction of such a right renders the detention illegal and unconstitutional.

8. Law is well settled in this regard that there is obligation on the Government to consider the representation of the detenu without any delay. The Hon'ble Apex Court in 'K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India & Ors.', (1991) 1 SCC 476, it was held that :

"10. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution.

Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. it is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiousl