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2018 DIGILAW 403 (JK)

Gulzar Ahmad Dar v. State of J&K

2018-06-07

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. This is a Habeas Corpus petition challenging order No. 17/DMP/PSA/2017 dated 21.11.2017 passed by the District Magistrate, Pulwama, herein respondent No. 2, under the provisions of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act), whereby on the basis of a dossier and connected documents furnished by the Senior Superintendent of Police, Pulwama, herein respondent No. 3, the petitioner, Gulzar Ahmad Dar, has been detained in preventive detention so as to prevent him from acting in any manner prejudicial to the security of the State. 2. The preventive detention of the petitioner (detenue) is challenged on various grounds. Learned counsel for the petitioner started with the ground that, whereas the detenu vide letter of intimation dated 21.11.2017 given by the detaining authority in terms of section 13 of the Act was informed that he may make a representation to the Government in the Home Department against his detention, he was not informed that such a representation can be made by him to the detaining authority also. Learned counsel for the petitioner submitted that the detenue has a legal right to make a representation to the detaining authority till the detention order issued by him is not approved by the Government. It was mandatory for the detaining authority to inform him in this regard and failure on his part renders detention illegal. In support of this submission, learned counsel relied upon a latest Division Bench judgment of this Court dated 09.06.2017 in Tariq Ahmad Dar v State of J&K and ors, LPAHC No. 43/2017. Reliance is placed also on the Supreme Court judgment in the case of State of Maharashtra and others v Santosh Shankar Acharya, AIR 2000 SC 2504 , where provisions of Sections 3(2) and 8(1) of the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers, Drugs Offenders and Dangerous Persons Act, 1981 (for short the Maharashtra Act) were considered in the light of the plea that the detaining authority did not provide an opportunity to the detenue to make a representation to the detaining authority and therefore, it was held to be bad. Per contra, learned Sr. AAG, Mr. Per contra, learned Sr. AAG, Mr. M. A. Wani, submitted that the detenu was clearly informed that he can make a representation to the Government against his detention and having failed to do so, he cannot succeed by taking a technical plea that he was not informed of his right to make representation to the detaining authority too. 3. In Santosh Shankar Acharya’s case the Hon'ble Supreme Court after considering the language used in section 8(1) of the Maharashtra Act has held that if the detention order is passed by an officer other than the State Government the right to make representation to the said detaining authority cannot be taken away. It has been held in para 6 of the reporting that: “This being the position, it does without saying that even under the Maharashtra Act a detenue 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 detenue that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenue under Article 22(5) of the Constitution and such failure would make the order of detention invalid.” 4. The same question has been considered in detail by the learned Division Bench of this Court in Tariq Ahmad Dar (supra). Learned Bench after analysing section 8 and 19 of the Act and section 21 of the Jammu and Kashmir General Clauses Act Samvat, 1977 and comparing them with the relevant provisions of the Maharashtra Act in light of the decision in Santosh Shankar Acharya (supra) has arrived at following conclusion in paragraph 15 of the judgment: “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.” 5. Failure of such non-communication would invalidate the order of detention.” 5. Learned Division Bench also rejected the plea taken on behalf of the respondents therein that „detenu could make a representation to the State Government and that such opportunity had been provided’ observing that Government’s approval of detention order came later, i.e. on 28.12.2016 whereas, the detention order was executed on the detenu on 24.12.2014 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority. Learned Division Bench, therefore, set aside the detention order without considering other grounds on which the detention was challenged. 6. In the case on hand, admittedly the detaining authority is the respondent No. 2. The order of detention was passed on 21.11.2017 and on the same day, letter of intimation in terms of section 13 of the Act was issued, whereby the petitioner was informed only that “you may make a representation to the Government against the said detention order if you so desire”. Record produced on behalf of the respondents would show that the order of detention dated 21.11.2017 was executed on 17.02.2018, the opinion by the Advisory Board was given on 05.03.2018 and the order of detention was confirmed by the State Government on 13.03.2018. The petitioner, thus, had a constitutional right to make representation to the detaining authority till the order of detention was not approved (confirmed) by the State Government. He, however, was not informed by the detaining authority of this valuable right available to him and therefore, in view of the legal position stated above his detention has invalidated. The impugned detention order is, therefore, liable to be quashed on this score only and other grounds need not be considered. 7. For the aforementioned, the impugned detention order is set aside. The petitioner/detenue be set at liberty, if not required in any other case. 8. Registry to return the record to the learned counsel for the respondents.