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2017 DIGILAW 725 (JK)

Suhail Ahmad Sheikh v. State of J&K

2017-08-23

ALI MOHD.MAGREY, BADAR DURREZ AHMED

body2017
JUDGMENT : Badar Durrez Ahmed, J. 1. This appeal is directed against the judgment dated 30.05.2017 delivered by a learned Single Judge of this Court whereby the appellant's Habeas Corpus Petition No. 63/2017 was rejected. The detenu (Suhail Ahmad Sheikh) was detained under detention order dated 06.02.2017 issued by the District Magistrate, Baramulla, in purported exercise of powers conferred by Clause (a) of Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The said detention order is stated to have been executed on 09.02.2017. The Government's approval under Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978 was granted on 15.02.2017 which was within the specified period of 12 days. 2. Mr. Qayoom, the learned counsel for the appellant raised several issues, but he has focused on one main issue. The issue raised by him is the same as reflected in ground (c) of the writ petition. The said ground (c) reads as under:- "c. That the respondent No. 2 in terms of his communication dated 06.02.2017, while informing the detenue of his detention under the provisions of Public Safety Act has informed him that he can make a representation in the Home Department against the said detention order, if he so desires. He has not however informed him that he can also make a representation to the detaining authority, which too renders the order of detention liable to be set aside." 3. He further submitted the fact that the appellant was not informed that he could also make a representation to the detaining authority i.e., District Magistrate, Baramulla, till the Government's approval came vitiated the detention order in terms of several decisions of the Supreme Court and furthermore that this very issue was considered in the case of 2017 (3) JKJ 684 [HC] Tariq Ahmad Dar v. State of J&K & Ors: LPAHC No. 43/2017 decided by a Division Bench of this Court on 09.06.2017. The Division Bench relied on the Supreme Court decision in the case of State of Maharashtra & Ors. v. Santosh Shankar Acharya, (2000) 7 SCC 463 , wherein pari materia provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, were considered. The Division Bench relied on the Supreme Court decision in the case of State of Maharashtra & Ors. v. Santosh Shankar Acharya, (2000) 7 SCC 463 , wherein pari materia provisions of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drug Offenders and Dangerous Persons Act, 1981, were considered. In the said decision of the Supreme Court, the question that had been raised was-whether in case of an order of detention by an officer under Section 3(2) of the said of Maharashtra Act, non-communication to the detenu that he has a right for making a representation to the detaining authority constituted an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and, as such, vitiated the order of detention? The said question as noted in the Division Bench decision in Tariq Ahmad Dar (supra) was answered in the affirmative which meant that unless and until the detenu was communicated that he had a right to make a representation to the detaining authority, there would be an infraction of the Constitutional right under Article 22(5) of the Constitution of India and that the detention order would be vitiated. 4. The Division Bench in Tariq Ahmad Dar observed as under:- "14. The Supreme Court, after considering the Constitutional Bench decision in Kamleshkumar Ishwardas Patel v. Union of India: (1995) 4 SCC 51 , came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the Bombay General Clauses Act and annul revoke or modify the order, as is provided under Section 14 of the Maharashtra Act. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under Section 3(2) of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and that the ratio of the Constitution Bench decision in case of Kamleshkumar's case (supra) would apply notwithstanding the fact that in Kamleshkumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA Act. Ultimately the Supreme Court held as under:- "This being the position, it goes without saying that even under the Maharashtra Act a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under Article 22(5) of the Constitution and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed." 15. From a reading of the said decision, it is abundantly clear that non-communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable Constitutional right guaranteed under Article 22(5) of the Constitution of India as also of the right under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. Failure of such non-communication would invalidate the order of detention. 16. Failure of such non-communication would invalidate the order of detention. 16. The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself. 17. In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non-communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned." 5. In the present case also, there has been failure to communicate to the detenu that he could make a representation to the detaining authority. The detention order was executed on 09.02.2017 and the Government's approval came on 15.02.2017, therefore, during this period, i.e., from 09.02.2017 to 15.02.2017, the detenu had a right to make a representation to the detaining authority who could, in exercise of his powers under Section 19 of the Jammu and Kashmir Public Safety Act, 1978 read with Section 21 of the General Clauses Act, Samvat 1977, have varied, modified or rescinded the detention order. The fact that the detenu was not made aware that he could make such a representation before the detaining authority vitiated the detention order itself. 6. That being the cast, the detenu is required to be released forthwith as the detention order itself had become invalid on 09.02.2017 when the detenu was not informed that he could make a representation to the detaining authority. This aspect of the matter has not been considered by the learned Single Judge although the ground was raised as ground (c) of the writ petition. On this ground alone, the detention order would have to go. This aspect of the matter has not been considered by the learned Single Judge although the ground was raised as ground (c) of the writ petition. On this ground alone, the detention order would have to go. Thus, the detention order having become invalid, the appellant/detenu is liable to be released forthwith insofar as this detention order is concerned. 7. The appeal is allowed. The impugned judgment dated 30/05/2017 is set-aside. 8. A copy of this order be given dasti to the learned counsel for the parties. A copy of this order shall also go to Superintendent, Central Jail, Kotbalwal, Jammu with a direction to release the detenu forthwith in case he is not under custody in respect of any other case.