Non-consideration of a representation against preventive detention violates Article 22(5) of the Constitution, rendering the detention order illegal.

JUDGMENT :

1) By the instant petition, veracity and legality of the detention order No.DMS/PSA/119/2022 dated 14.09.2022, issued by District Magistrate, Srinagar (for brevity “Detaining Authority”) has been challenged. In terms of the aforesaid order, Mohammad Ramzan Naik (for short “detenue”) has been placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State.

2) The petitioner has contended that the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify its illegal action of detaining the detenue. It has been contended that the grounds of detention are vague and cryptic, on the basis of which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material which formed basis of the impugned detention order has not been supplied to the petitioner. It has also been contended that the representation of the petitioner against the impugned detention order has not been considered by the respondents.

3) The respondents, in their counter affidavit, have submitted that the activities of detenue are highly prejudicial to the security of the State. It has been averred in the reply that the detaining authority has followed the provisions of J&K Public Safety Act and the detenue has been detained only after following due procedure. It is pleaded that the detention order and grounds of detention along with relevant material were handed over to the detenue and the same were read over and explained to him. That the impugned detention order does not suffer from any legal infirmity. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for parties and perused the record.

5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the following grounds:

(I) That although a representation was submitted against the detention by the detenue through his father before the respondents yet the same was not considered rendering the detention order unsustainable in law.

(II) That the grounds of detention are vague, cryptic and lacking in material particulars.

6) The first ground projected by the petitioner is that he had submitted a representation against his detention but the same has not been considered by the respondents. It has been specifically contended by the petitioner in ground (II) of his petition that he had made representation against his detention through his wife to the Commissioner/Secretary Home Department and the District Magistrate, Srinagar. The representation made to District Magistrate, Srinagar, seemingly, has been received, on 27.09.2022 and copy of the representation bears the seal of the office of the District Magistrate concerned. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit. The detention record does not suggest that the said representation has either been considered by the Government or placed before the Advisory Board.

7) The non-consideration of the representation indisputably amounts to violation of constitutional safeguards provided the provisions of Article 22(5) of the Constitution. A reference in this behalf to the judgment of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559, would be relevant. In Para 4 of the aforesaid judgment, the Court observed as under:-

“4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the p