IMPORTANT POINT
The court established that the right to make an effective representation against preventive detention is fundamental, and failure to provide legible and comprehensible grounds of detention invalidates the detention order.

JUDGMENT :

MOKSHA KHAJURIA KAZMI, J.

1. The present Letters Patent Appeal (LPA) has been preferred by the detenue, Abdul Majeed Dar, through his wife, Naza Begum, against the judgment and order dated 08.02.2023, rendered by the learned Single Judge of this Court in a habeas Corpus petition [WP (Crl) No. 514/2022], whereby the detention Order No. 27/DMK/PSA of 2022, dated 05.07.2022, passed by the District Magistrate, Kupwara, by virtue of which the appellant had been placed under preventive detention in exercise of powers under Section 8 of the J&K Public Safety Act, 1978 and was ordered to be lodged in District Jail, Bhaderwah, Jammu, was challenged on the ground taken therein.

Brief facts

2. The detenue-appellant herein through his wife has filed a Habeas Corpus Petition (No. 514/2022), challenging his detention Order No. 27/DMK/PSA of 2022, dated 05.07.2022, on the grounds that the detenue was arrested by the Police concerned without any rhyme or reason on 20.06.2022 and was kept in Police Chowki Nagri till 14.07.2022, wherefrom he was shifted and lodged in Police Station, Kupwara on 14.07.2022. Thereafter on 15.07.2022, he was shifted to District Jail, Bhaderwah and detained under the Provisions of J&K Public Safety Act, 1978. It is averred that the detention order is illegal, unconstitutional and in violation of the provisions of law and Constitution of India as also the provisions of the J&K Public Safety Act, 1978; the detenue has only been provided the illegible copy of dossier, grounds of detention along with the letter of SSP Kupwara, and no other document. The foundation of the impugned detention order is on FIR Nos' 262/2002 and 122/2007 of Police Station Sopore and Police Station Handwara, and the grounds of detention, on the basis whereof the earlier detention orders were also passed against the detenue. The allegations attributed to the detenue are imaginary and politically motivated, based on the baseless and concocted surmises. These facts have been brought to the notice of the Detaining Authority by way of a representation made by the detenue through his wife on 19.07.2022, through registered post to which extent, postal receipt is placed on record, but the said representation has not been considered by the Detaining Authority as on date.

3. The detention order (supra) was executed on 15.07.2022, when the detenue was already in custody of Police Chowki Nagri, w.e.f. 20.06.2022 till 14.07.2022.

4. The writ Court has dismissed the said Habeas Corpus Petition after examining the material and appreciating the contentions of learned counsel for the parties. The conclusion arrived at by the learned Single Judge is that none of the rights of the detenue have been violated by passing of the detention order in question.

5. Feeling aggrieved and dissatisfied with the judgment and order dated 08.02.2003, the instant appeal has been filed by the detenue through his wife.

6. We have heard learned counsel for the parties and have gone through the record, produced by the learned counsel for the respondents.

7. The learned counsel for the appellant has primarily raised an issue that the representation dated 19.07.2022, sent through registered post, by the appellant, through his wife (Naza Begum), was not considered by the respondents. In this context respondents in their counter affidavit have submitted in para-5 that the detenue has no right to challenge his detention for having ostensibly chosen not to file any representation against his detention before the competent authority, which was an equal alternate efficacious remedy. The intentional and willful act not to avail such remedy estops the appellant to challenge his preventive detention.

8. It appears that the representation dated 19.07.2022, filed against the detention order of the detenue has not been considered by the respondents till date though respondents were under a bounden duty to dispose of the same with a reasonable dispatch and to convey its outcome to the appellant