The failure to consider a detenu's representation against preventive detention violates Article 22(5) of the Constitution, rendering the detention order illegal.

JUDGMENT :

Sanjeev Kumar, J.

1. This intra-Court appeal is directed against the judgment dated 25.11.2024 passed by the learned Single Judge of this Court ['the Writ Court'] in HCP No. 37/2024 titled 'Amjad Khan vs. vs. UT of Jammu and Kashmir and others’, whereby the Writ Court has declined to set aside the order of detention of the appellant issued by the Divisional Commissioner, Jammu [‘the detaining authority’] vide his No. PITNDPS 19 of 2024 dated 15.02.2024.

2. Before we advert to the grounds of challenge urged by learned counsel appearing for the appellant, it is necessary to notice few relevant facts.

On the basis of some material, such as a dossier and other connected documents, including copies of FIRs registered against the appellant, the Divisional Commissioner, Jammu, vide his communication dated 15.02.2024, ordered the detention of the appellant with a view to prevent him from committing any offence under the Prevention of Illicit Traffic.

3. From a reading of the grounds of detention, it transpires that the activities, which the Detaining Authority found to pose a threat to the health and welfare of the people, are such, in respect of which, the Police Station, Udhampur has already registered two FIRs; one in the year 2018 and the other in the year 2023. Both the FIRs have been registered for commission of offences under Sections 8/21/22 of NDPS Act. FIR No. 436/2018 is shown to have been investigated and culminated into presentation of a challan before the competent Court of law, while FIR No. 601/2023 is still under investigation. On the basis of allegations in the FIRs aforesaid, the Detaining Authority has come to the conclusion that the activities of the appellant pose a serious threat to the health and welfare of the people. Consequently, the Detaining Authority recorded its satisfaction that, with a view to prevent the appellant from indulging in activities prejudicial to the health and welfare of the people, it was necessary and in public interest to place the appellant under preventive detention.

4. Feeling aggrieved by his detention, the appellant filed HCP No. 37/2024 before the Writ Court which was contested by the respondents by filing a counter affidavit.

5. The Writ Court, after considering the rival contentions and having gone through the detention record, came to the conclusion that the activities, the appellant had been indulging in, had the potential to disturb public health, safety, and the well-being of society. Accordingly, the Writ Court upheld the order of detention passed by the Detaining Authority and dismissed the writ petition vide its judgment dated 25.11.2024 . It is this judgment of the Writ Court that is impugned before us in this appeal.

6. Although, the learned counsel for the appellant has raised several grounds to challenge the impugned judgment of the Writ Court, yet, during the course of arguments, he has laid much emphasis on the contention that the appellant had filed a representation through his wife, Pinky, against the detention order, but the same was not considered by the respondents. However, the Writ Court did not consider this aspect of the matter.

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

8. Indisputably, the appellant, through his wife Pinky, made a representation dated 27.02.2024 against his detention, which was received by the office of Divisional Commissioner, Jammu, on 28.02.2024. The appellant has specifically pleaded in ground (u) of the writ petition and ground (h) of this appeal that he made a representation before the detaining authority, but the same has not been considered. These assertions remain unrebutted, as there is no denial of the same by the respondents in their counter affidavit.

9. From a perusal of the detention record, it is revealed that the respondents have received the representation of the appellant, as is evident from the communication dated 28.02.2024, addressed by the Divisional Commissioner, Jammu to the Prin