The court held that delays in considering and communicating the outcome of a representation against a detention order violate procedural safeguards under Article 22(5) of the Constitution.

JUDGMENT :

1. The petitioner has filed the present writ petition through his brother-in-law thereby challenging the order of detention no. DMB/PSA/14 of 2023 dated 11.09.2023 passed by the District Magistrate Budgam whereunder the petitioner has been detained under section 8 of the J&K Public Safety Act to prevent him from acting in any manner prejudicial to the maintenance of peace and public order.

2. Besides the traditional grounds, it is urged by the petitioner for the purpose of assailing the order of detention dated 11.09.2023 that the allegations contained in the First Information Report (FIR) which have been made basis for passing the order of detention even if taken to be true on their face value, do not constitute an act which has the propensity of disturbing the public order and also that a representation dated 16.09.2023 against the order of detention was submitted by the petitioner through his brother-in-law but the same was neither considered nor the petitioner was informed about its outcome by the respondents.

3. The respondents have filed response to the petition stating therein that as per the report received from Superintendent of Police, Budgam, the petitioner is involved in the commission of theft/burglary, has no respect for the law of the land and has been found involved in multiple burglary/criminal cases. There is every apprehension that if the petitioner remains at large, it may result in disruption of peace in the society and may create law and order problem. It is further stated that the petitioner is involved in FIR no. 183/2023 for commission of offences under section 457, 380 IPC of police station, Chadoora, and in the given facts and circumstances, the petitioner was ordered to be detained vide order impugned issued by the District Magistrate, Budgam. It is further stated that all statutory and constitutional requirements have been fulfilled by the detaining authority while detaining the petitioner. The grounds of detention, order of detention as well as the material relied upon by the detaining authority also came to be provided to the petitioner. The warrant of arrest in respect of the detention of the petitioner was executed by the concerned police and the petitioner was handed over to the Superintendent of the jail concerned. It is further submitted that the petitioner was also informed of his right to make a representation to the detaining authority or to the government. The petitioner submitted representation through his brother-in-law before the office of respondent no. 2 and the same was forwarded to the competent authority vide communication dated 20.09.2023 for its consideration. The competent authority submitted its report dated 12.12.2023 wherein due consideration was accorded to the representation of the petitioner but the same was found to be without any merit by the Government. It is also averred that the opinion of the Advisory Board was obtained and the Advisory Board after considering the material placed before it, held that there is sufficient ground for the detention of the detenu in the instant case.

4. Learned counsel for the petitioner states that that the petitioner could not have been detained merely on the allegations levelled in the FIR as the same did not fall within the purview of activities considered to be prejudicial to the maintenance of public order in terms of section 8(3)(b) of the J&K Public Safety Act, 1978. He has further submitted that the petitioner was never informed about the outcome of the representation submitted by the petitioner through his brother-in-law.

5. Learned counsel for the respondents has vehemently argued that the activities of the petitioner were considered prejudicial to the maintenance of peace and public order and the respondent no. 2 after recording his satisfaction passed the impugned order of detention in accordance with law. He has further submitted that all the statutory as well as constitutional requirements have been fully complied w