Non-consideration of a detenu's representation against preventive detention violates Article 22(5) of the Constitution, rendering the detention unconstitutional.

JUDGMENT :

1. Order no. 163/DMS/PSA/2023 dated 07.02.2023 (impugned detention order) passed by District Magistrate, Shopian – respondent no. 2, (for short ‘detailing authority’) whereby detenu, namely, Mohd Yaseen Naikoo S/o Gh. Qadir Naikoo R/o Bonbazar Shopian Tehsil & District Shopian, has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State, is sought to be quashed and the detenu set at liberty on the grounds made mention of in the instant petition.

2. Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State and, therefore, his remaining at large is a threat to the security of State. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant. 3. I have heard learned counsel for parties and considered the matter.

4. Learned counsel for petitioner states that the detaining authority in the grounds of detention on the basis whereof impugned order of detention has been passed in its entirety are vague, hypothetical, fallacious, generalised, creation of fiction and make-believe, irrelevant, non-existent and indefinite, unaccompanied by material particulars and details, like place, date, place of occurrence, incidents, etcetera not specific in nature with reference to any time in which the said activities were committed or sequence of events. He also avers that mere use of expressions like “hard core OGW” etcetera without referring to any incident or actual narration of facts (culpability) by no logic relevance or rational, justify the detention of detenu under the Act and even not a single incident or activity criminal in nature qua FIR is reported against detenu as such, impugned order of detention is bad in law and that such generalised allegations can be levelled against any innocent person. It is also being stated by learned counsel for petitioner that detaining authority has failed to consider or forward representation made on 22.02.2023 against impugned order of detention to the Government, which has resulted in violation of important constitutional and legal rights of detenu.

5. On the contrary, learned counsel for respondents, while opposing the submission of learned counsel for petitioner would vehemently contend that the order under challenge has been passed by detaining authority validly and legally owing to activities of detenu being prejudicial to the security of the State.

6. The submission that has been given vehemence by learned counsel for detenu and is also made mention of in the petition, is that representation filed by detenu through his brother has not been considered by the respondents. In their Reply Affidavit filed by respondents, particularly Preliminary Objections at Para E, it is stated by respondents that “detenue despite having received the aforesaid entire material has not so far chosen to make any representation against his detention”. Admittedly, a copy of representation, placed on record by petitioner as Annexure III to writ petition, has been filed by detenu through his brother, against detention on 22.02.2023 and the same has not been considered till date. There is, thus, substance in the submission of learned counsel for petitioner that non-consideration of representation of detenu vitiates impugned order of detention. Law in this regard is settled as the Supreme Court in Tara Chand v. State of Rajasthan and others , 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail , Kanpur and others (1986) 1 SCC 650, has held that if there is inordinate delay in cons