The failure to consider a detainee's representation and reliance on incorrect information invalidates a detention order under preventive detention laws.

JUDGMENT :

1. The petitioner has filed the present writ petition through his father, thereby challenging the order of detention no. 77/DMK/PSA/2022 dated 01.12.2022 passed by the District Magistrate, Kulgam, by virtue of which the petitioner has been detained under section 8 of the J&K Public Safety Act, 1978 (for short ‘the Act’), in the interest of Security of State.

2. It is urged by the petitioner for the purpose of assailing the order of detention dated 01.12.2022 that the grounds of detention are vague, and no prudent man can make a representation against such allegations and such vague grounds cannot justify the issuance of order of detention. It is also urged that the detention order has been passed against a wrong person, as he was never arrested or bailed out in FIR No. 212/2016 and the material relied upon by the detaining authority was not provided to the petitioner to enable him to file an effective representation against order of detention. It is one of the grounds of the challenge that the petitioner submitted a representation before the respondent No.2, but the same was never considered by the respondent No.2, which renders the detention of the petitioner illegal. The petitioner has placed on record the copy of the representation bearing the seal and receipt dated 21.12.2022 of official respondent no. 2.

3. The respondents have filed the counter-affidavit stating therein the petitioner has indulged in various subversive activities and was named in an FIR No. 212/2016 registered under section 147, 148, 149, 336 RPC in police station Kulgam. Considering his activities to be prejudicial to the security, sovereignty and integrity of the state, the District Magistrate, Kulgam ordered his preventive detention under the Act. It is further stated that all the statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority. Keeping in mind the object of the law of preventive detention being not punitive but only preventive, the detaining authority has passed the order of detention after deriving subjective satisfaction in the matter. Grounds of detention, order of detention as well as entire material relied upon by the detaining authority came to be furnished to the detenu well within the statutory period provided under section 13 of the Act. In compliance to the District Magistrate’s order of detention, the warrant was executed by the Executing Officer and the detenu was handed over to Superintendent, Central Jail, Kotbhalwal, Jammu for lodgement. The contents of detention order/warrant and the grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu whereof, he subscribed his signatures on the execution report/order. The detenu was also informed of his right of making a representation to the Detaining Authority or to the Government against his detention. It is further stated that opinion of the Advisory Board was also sought and the Advisory Board, after considering the material placed before it opined, that there is sufficient cause for detention of the petitioner in the instant case and only after obtaining the opinion of the Advisory Board, the Government has confirmed the order of detention issued against the detenu.

4. Learned counsel for the petitioner has reiterated the submissions made in the writ petition and has laid much stress that the representation was submitted by the petitioner against the order of detention but the same was never decided by the respondent No. 2 and as such the order of detention has been rendered illegal. He has also submitted that the petitioner was neither arrested nor bailed out in the FIR relied upon by the respondent No. 2 for the purpose of detaining the petitioner.

5. Per contra, Mr. Alla ud din Ganai, learned AAG has vehemently argued that the activities of the petitioner were found to be prejudicial to the maintenance of the security of the state and after deriving th