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2022 DIGILAW 360 (JK)

Javid Ahmad Mir v. U. T. of J&K

2022-07-29

SINDHU SHARMA

body2022
JUDGMENT : 1. The present petition has been preferred by the detenue-Javed Ahmad Mir S/o Late Abdul Rehman Mir R/o Sarhandi Colony, Khonmoh, Srinagar through his wife Mst. Sahista Bano, challenging his order of Detention No. DMS/PSA/50/2019, dated 08.08.2019, passed by the District Magistrate, Srinagar, detaining him under Section 8(a) of the Jammu and Kashmir Public Safety Act, 1978. 2. This order of detention has been assailed by the detenue on the ground that (i) the order of detention was passed on 08.08.2019 but the same was executed only on 30.03.2022, thus, the order of detention had already out lived its utility and, as such, the detention order is required to be set aside; (ii) the allegations made in the grounds of detention are too vague and cryptic and against the same no prudent man can make an effective representation; (iii) the detenue was already in custody in FIR No. 55 of 2019, at the time when the detention order was passed but there is delay still in the execution of the detention order which has vitiated the impugned order; (iv) the detaining authority has not furnished all the relevant material for passing the order of detention;(v) the grounds of detention have not been prepared by the detaining authority itself while passing the order of detention; (vi) the detenue has been prevented from making an effective representation and was not informed of his rights to make a representation before the competent authority which violates the Constitutional and Statutory rights guaranteed to him; (vii) the detenue had moved a representation before the respondent No. 2but the same has not been considered, as such, non-consideration of the representation violates the constitutional and procedural safeguards provided to the detenue under Article 22 of the Constitution of India and Section 13of the Public Safety Act. 3. Mr. Sajad Ashraf, learned G.A has filed counter affidavit as well as produced the detention record. 4. The respondents submit that the detenue was detained under the provisions of Jammu and Kashmir Public Safety Act, 1978 by virtue of detention order dated 08.08.2019, passed by the District Magistrate, Srinagar. The Detaining Authority has fulfilled all the statutory requirements and constitutional guarantees and procedural safeguards as provided to the detenu. 4. The respondents submit that the detenue was detained under the provisions of Jammu and Kashmir Public Safety Act, 1978 by virtue of detention order dated 08.08.2019, passed by the District Magistrate, Srinagar. The Detaining Authority has fulfilled all the statutory requirements and constitutional guarantees and procedural safeguards as provided to the detenu. The grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority while passing the order of detention has been provided to the detenue. The detenue was also informed of his right to make a representation against the order of detention. The case of the detenu was referred to the Advisory Board for its opinion and the Advisory Board after considering the material placed before it has held that there is sufficient cause for detention of the detenu, thus, after the opinion, the Government confirmed the order of detention. 5. Heard learned counsel for the parties and perused the record also. 6. Perusal of the record reveals that though the order of detention was passed on 08.08.2019, the same was executed only on 31.03.2022, thus, there is an unexplained delay of almost two years in execution of the warrant. This, despite the fact that the detenu was already in custody in FIR No. 55 of 2019, was enlarged on bail in the said FIR vide order dated 17.11.2021, passed by the learned Special Judge, Srinagar. Thereafter the detenue had been regularly appearing before the trial Court. There is no explanation tendered for the delay of more than two years in execution of the detention order and this casts a shadow of doubt on the necessity of passing of the order of detention as the same has rendered its purpose irrelevant. 7. The Hon'ble Apex Court, while considering a similar proposition in Manju Ramesh Nahar v. Union ofIndia & Ors., AIR 1999 SC 2622 , where there was a delay of more than five months in executing the order, hasheld as under; "8. This object can be achieved if the order is immediately executed. 7. The Hon'ble Apex Court, while considering a similar proposition in Manju Ramesh Nahar v. Union ofIndia & Ors., AIR 1999 SC 2622 , where there was a delay of more than five months in executing the order, hasheld as under; "8. This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the "satisfaction" of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent". 8. In A. Mohammed Farook v. Jt. Secy. To G.O.I. & Ors., (2000) 2 SCC 360 , the Hon'ble Apex court has held that: "the only contention before the Court was that of delay in executing the order of detention. In that case, the detention order was passed on 25.02.1999 but the authorities have chosen to execute the detention order only on 06.04.1999 after an inordinate and unreasonable delay of nearly 40 days. In the absence of proper and acceptable reasons for the delay of 40 days in executing the detention order, this Court concluded that the subjective satisfaction of the Detaining Authority in issuing the detention order dated 25.02.1999 gets vitiated and on this ground quashed the same". 9. Similarly, in K.P.M. Basheer v. State of Karnataka & Anr., AIR 1992 SC 1353 , the Hon'ble Apex court has held that: "...Under these circumstances, we are of the view that the order of detention cannot be sustained since the 'live and proximate link' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in security the appellant/detenue and detaining him...". 10. The detenue, it is submitted, had moved a representation against his detention on 05.04.2022 but the same has not been considered till date. This has not been denied by the respondents. The detenue has a statutory right to file a representation against his detention and the respondents are under duty to consider the same. 11. Article 22(5) of the Constitution of India provides for specific protection to the detenue. This has not been denied by the respondents. The detenue has a statutory right to file a representation against his detention and the respondents are under duty to consider the same. 11. Article 22(5) of the Constitution of India provides for specific protection to the detenue. It stipulates that whenever any person is detained by an order providing for preventive detention, the Authority making the grounds must provide him an earliest opportunity of making a representation, and the representation must be dealt with expeditiously. 12. The Hon'ble Apex Court in "Sarabjeet Singh Mokha v. The District Magistrate, Jabalpur & Ors.", SCC Online SC 1019, has held as under: "....Article 22(5) reflects a keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and hence, it incorporates procedural safeguards which mandate an immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by the detenu must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition". 13. There must be cogent cause and strict adherence to the safeguards prescribed while curtailing the personal liberty of an individual. The detaining authority has not considered the representation of the detenue resulting in violation of the valuable rights of the detenue and, therefore, the detention is unsustainable. 14. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed and the detention Order No. DMS/PSA/50/2019, dated 08.08.2019, passed by the District Magistrate, Srinagar, under which detenue-Javed Ahmad Mir S/o Late Abdul Rehman Mir is under detention, is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, provided he is not required in any other case. 15. Detention record be returned to learned counsel for the respondents by the Registry forthwith.