Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 620 (JK)

Waqar Ahmad Ganie v. Union Territory of J&K

2022-11-09

MOKSHA KHAJURIA KAZMI

body2022
JUDGMENT Moksha Khajuria Kazmi, J. - Through the medium of instant writ petition, quashment of Order No. DMB/PSA/22 of 2022 dated 25.06.2022, passed by the respondent No. 2-District Magistrate, Budgam (hereinafter called 'Detaining Authority') in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, in terms whereof the husband of the petitioner namely, Waqar Ahmad Ganie S/O Mohammad Maqboo Ganie R/O Patrigam Chadoora, District, Budgam (for short 'detenue') was ordered to be detained and lodged in Central Jail Kotbalwal, Jammu has been sought taken in the memo of the petition. The petitioner seeks release of the detenue forthwith from the preventive custody. 2. Though the detention order has been challenged on several grounds, but the main ground taken by the petitioner is that the representation filed against the detention order has not been considered by the respondents till date. It is submitted that because of non-consideration of the representations, the detention order is liable to be quashed. Copy of the representations are annexed with the writ petition as annexure- IV & V. 3. The respondents in their counter affidavit have defended the order of detention, stating therein that the detaining authority after being satisfied on the basis of the material available including the dossier submitted by Senior Superintendent of Police, Budgam, that it is necessary to prevent the detenue from acting in any manner prejudicial to the 'security of the State' and accordingly placed him under preventive detention. It is stated that the detention of the detenue has been ordered strictly in accordance with the provisions of J&K Public Safety Act, 1978 (for short 'the Act') and the procedural safeguards prescribed under the provisions of the Act have strictly been followed and the rights guaranteed to the detenu under the Constitution are protected. It is further submitted that activities of the detenue are highly prejudicial to the security of the Union Territory of J&K and, therefore, there was no option left to the detaining authority, but to order detention of the detenue under the Act. It is also urged that the grounds of detention sufficiently connect the detenue with the activities which are highly prejudicial to the security of the UT of J&K, as such, the detention of the detenue is legal. 4. It is also urged that the grounds of detention sufficiently connect the detenue with the activities which are highly prejudicial to the security of the UT of J&K, as such, the detention of the detenue is legal. 4. With regard to the allegation of non-consideration of the detenu's representations, it is stated by the respondents that the detenue was informed about his right to make a representation to the detaining authority or the Government. It is stated that the detenue had not made any representation which means that he had no grievance or complaint against his detention. 5. Heard learned counsel for the parties and perused the averments made in the petition, annexures appended thereto as also the counter filed by the learned counsel for the respondents. 6. It has been contended that representations stands already filed by the father of the detenue before the detaining authority as also the Government, copies whereof are annexed as Annexure-IV & V to the writ petition along with the postal receipts but despite lapse of more than three months, the representations have not considered by the authorities. However, a categoric objection has been raised in para-C of the counter affidavit that no representation has been filed or received on behalf of the detenue. 7. From the perusal of the material placed on record, it is evident that father of the petitioner, Mohammad Maqbool Ganie, had made representations both to the detaining authority and the Government but nothing in respect of the disposal of the said representations has been done by the respondents till date. It is thus, evident that representations filed by the detenue through his father, i.e., petitioner herein in the month of July, 2022, have not been considered by the respondents so far. 8. It appears that representations dated 08.07.2022, have been filed against the detention order of the detenue which have not been considered by the respondents till date. 9. The respondents were under bounden duty to dispose of the representations filed by the petitioner within a reasonable dispatch and convey the outcome of the same to the petitioner at an earliest. In the instant case, the respondents have slept over the matter and have not decided the representations of the petitioner as on date. 10. Article 22(5) of the Constitution of India, casts legal obligation on the Government to consider the detenu's representation as early as possible. In the instant case, the respondents have slept over the matter and have not decided the representations of the petitioner as on date. 10. Article 22(5) of the Constitution of India, casts legal obligation on the Government to consider the detenu's representation as early as possible. It is the bounden duty of the Detaining Authority or the Government, as the case may be, to consider the representation of the detenu and pass appropriate orders thereon. There should be no slackness and callous attitude in considering the representation of the persons who are detained. Any unexplained delay would amount to breach of constitutional safeguards and would render the detention of the detenu as illegal. Every single day's delay in dealing with the representation has to be explained and the explanation offered must be reasonably indicating that there was no slackness or callousness. 11. In Tara Chand vs. State of Rajasthan & Ors., 1980 (2) SCC 321 , Hon'ble Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal. The Supreme Court in another case Rahmatullah vs. State of Bihar, AIR 1981 SC 2069 has held that clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. The obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Government's obligation to refer the case of the detenu along with representation to the Advisory Board to enable it to form its opinion and send a report to the Government. Therefore, it is implicit in clauses (4) and (5) of Article 22 of the Constitution of India that the Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The Supreme Court in the case of Kundanbhai Dulabhai Sheikh vs. District Magistrate Ahmedabad & Ors. 1996 Crl.L.J. 1981 quashed the detention order only on the ground of delay in disposing of the representation. 12. Having gone through the observations of the Supreme Court in the aforesaid cases, this Court is of the considered view that the ratio laid down therein is, squarely, applicable to the instant case. 1996 Crl.L.J. 1981 quashed the detention order only on the ground of delay in disposing of the representation. 12. Having gone through the observations of the Supreme Court in the aforesaid cases, this Court is of the considered view that the ratio laid down therein is, squarely, applicable to the instant case. Therefore, the detention order is liable to be quashed. 13. In view of the settled proposition of law (Supra), the non-consideration of the detenu's representation constitutes violation of the constitutional right, guaranteed under Article 22 of the Constitution. This also depicts the failure of the Government to discharge its function. Therefore, for this reason alone, writ petition can succeed. 14. Accordingly, the writ petition is allowed and the impugned detention Order No. DMB/PSA/22 of 2022 dated 25.06.2022, is quashed. The Jail Superintendent concerned is directed to release the detenue namely, Waqar Ahmad Ganie S/O Mohammad Maqboo Ganie R/O Patrigam Chadoora, District, Budgam forthwith, if his detention is not required in connection with any other criminal case(s). 15. Disposed of.