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2023 DIGILAW 137 (JK)

Imran Qadir v. U. T. of J&K

2023-04-07

SINDHU SHARMA

body2023
JUDGMENT : 1. This petition has called into question the detention Order No. DMS/PSA/49/2022, dated 18.04.2022 passed by the District Magistrate, Srinagar, detaining the detenue, namely, Imran Qadir S/o Ghulam Qadir Hazari under section 8 of the Public Safety Act to prevent him from acting in any manner prejudicial to the security of the UT. This order of detention has been questioned by the detenue through his mother. 2. The detenue challenges the order of detention on the ground that (i) the allegations mentioned in the grounds of detention have no nexus with the detenue and have been fabricated to justify his detention; (ii) the grounds on which the Detaining Authority has derived its satisfaction are vague, obscure, ambiguous and are not connected with the detenue and, as such, no effective representation can be made against these allegations. (iii) the detenue was already in custody when the detention order was passed and the detaining authority has not spelled out any reason for detaining the detenue; (iv) all the material relied upon by the Detaining Authority, while passing the order of detention has not been supplied to the detenue, thus, the detenue has not been able to make an effective representation. 3. Mr. Sajjad Ashraf, learned GA has filed the counter affidavit on behalf of the respondents and has also produced the record of detention. 4. Learned counsel for the respondents submits that the grounds of detention are precise and there is no vagueness in the grounds of detention. The detaining authority has clearly applied its mind before passing the order of detention as the activities of the detenue were highly prejudicial to the public order. The grounds of detention were handed over to the detenue and the same were read over and explained to him in the language he understand. It is submitted that all the statutory requirements have been fulfilled and complied with by the detaining authority. 5. Heard learned counsel for the parties and perused the record. 6. Perusal of the record reveals that the detenue had made a representation to the detaining authority on 28.04.2020. This representation of the detenue has not been considered by the detaining authority till date. 7. 5. Heard learned counsel for the parties and perused the record. 6. Perusal of the record reveals that the detenue had made a representation to the detaining authority on 28.04.2020. This representation of the detenue has not been considered by the detaining authority till date. 7. Article-22(5) of the Constitution of India provides that when any person is detained, the Detaining Authority shall, as soon as may be, communicate to the detenu, the grounds on which the detention order has been made and shall afford him an earliest opportunity of making an effective representation against the order of the detention. The detenue by filing a representation had approached the authority concerned but the respondents have not considered his representation till date, thus, resulting in infraction of this valuable right. 8. 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 immediancy 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." 9. In "KundanbhaiDulabhai Shaikh v. District Magistrate, Ahmedabad & Ors.", 1996 Cr.LJ 1981, the Court has quashed the detention order only on the ground of delay in disposal of the representation. It was held as under: "...it was provided that inordinate and unexplained delay in the disposal of representation would make the continued detention of a person, illegal and unconstitutional. In Devi Lal Mahto v. State of Bihar & Anr., AIR (1982) SC 1548, the continued detention was held to have become bad on account of the indifferent attitude of the Government in not attending to the representation for about 10 days." 10. This apart, the detenue has submitted that all the material relied upon by the Detaining Authority has not been provided to him. This apart, the detenue has submitted that all the material relied upon by the Detaining Authority has not been provided to him. The detenue has only received the grounds of detention/Notice/letter addressed to the detenu consisting of (six) leaves, as per the receipt of grounds of detention but the dossier and other material relied upon by the Detaining Authority has not been provided to the detenue. The detention order dated 18.04.2022 reflects that the same is based on the dossier placed before the Detaining Authority by the Senior Superintendent of Police, Srinagar. The detenue was thus prevented from making an effective representation due to non-supply of entire material relied upon by the Detaining Authority while arriving at a subjective satisfaction. In order to make an effective representation, the detenue must know, what weighed with the Detaining Authority while passing the order of detention and non-supply of the same has hampered him from making an effective representation. 11. This non-supply of material had prevented the detenue from making an effective and purposeful representation and failure in supplying the same has rendered the detention unsustainable in law. In Sophia Ghulam Mohd. Bham v. State of Maharashtra & Ors., AIR 1999 SC 3051 , the Apex Court observed as under:- "... The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language..." 12. Similar view has also been fortified in "Thahira Haris Etc. v. Govt. of Karnataka & Ors.", AIR 2009 SC 2184 . 13. There is unexplained delay on the part of the Government in deciding the representation of the detenue and the fact that all the material relied upon by the Detaining Authority has not been provided to him, thus, this has resulted in infraction of the detenue's rights and this also vitiates the order of detention. 14. 13. There is unexplained delay on the part of the Government in deciding the representation of the detenue and the fact that all the material relied upon by the Detaining Authority has not been provided to him, thus, this has resulted in infraction of the detenue's rights and this also vitiates the order of detention. 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/49/2022, dated 18.04.2022, passed by the District Magistrate, Srinagar under which detenue-Imran Qadir S/o Ghulam Qadir Hazari, R/o Bulbul Lanker, Nawakadal, Srinagar is under detention, is quashed. Accordingly, the respondents are directed to release the detenue from the custody forthwith, if he is not required in any other case. 15. Let the detention record be returned to learned counsel for the respondents by the Registry forthwith.