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2023 DIGILAW 173 (JK)

Sahil Nisar Malik v. UT of J&K

2023-05-08

SINDHU SHARMA

body2023
JUDGMENT : 1. The District Magistrate, Pulwama, vide order No. 69/DMP/PSA/2019, dated 19.07.2022, detained Sahil Nisar Malik, S/o Nisar Ahmad Malik, R/o New Colony, Pulwama, Tehsil and District Pulwama, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, to prevent him from acting in a manner prejudicial to the security of the State. This order of detention is challenged by the detenu through his father, Nisar Ahmad Malik. 2. The detenu has assailed the impugned order of detention on the grounds that; (a) the allegations made in the grounds of detention have no nexus with the detenu as the allegations made are vague, non-existent against which no representation can be made; (b) the Detaining Authority has not prepared the grounds of detention itself, therefore, there is total non-application of mind; (c) the detenu has not been furnished all the material relied upon by the Detaining Authority and the representation submitted by the detenu before the respondent No. 2 has not been considered; (d) the Detaining Authority has not given any compelling reasons for passing the order of detention. 3. Learned counsel for the detenu submits that the detenu was already admitted to bail in FIR No. 203 of 2021 registered with the Police Station, Pulwama, and the Detaining Authority, despite having knowledge of the same has not given any compelling reason for passing the order of detention. There was no application of mind while detaining the detenu and also there is no proximity between the alleged activity and the detention order, as such, the same is unjustified, unreasonable and deserves to be quashed. 4. Mr. Furqan Yaqub, learned G.A. has filed the reply affidavit as well as produced the detention record. It is submitted by him that the detenu was detained vide detention order No. 69/DMP/PSA/2019 dated 19.07.2022, in accordance with the provisions of the Jammu and Kashmir Public Safety Act, 1978. He further submitted that the activities of the detenu were highly prejudicial to the maintenance of the security of the State, as such, the detenu was detained under the said Act. All the statutory requirements and constitutional guarantees were fulfilled and complied with by the Detaining Authority. 5. Heard learned counsel for the parties and also perused the material on record. 6. All the statutory requirements and constitutional guarantees were fulfilled and complied with by the Detaining Authority. 5. Heard learned counsel for the parties and also perused the material on record. 6. The contention of the detenu that he has made a representation through his father on 04.08.2022 and same has not been considered, therefore, valuable fundamental rights under Article 22 of the constitution have been violated. The representation dated 04.08.2022 along with the receipt is on record. The respondents have not made any averment with regard to the receipt of the representation and its consideration and also there is nothing on record to suggest that the said representation has been considered, therefore, there is a substance in the submission of learned counsel for the detenu. This non-consideration of the representation has vitiated the order of detention. 7. It is well settled that right of the detenu to make a representation and to have the same considered by the competent authority is a fundamental right guaranteed to a person under Constitution and the infraction of such a right renders the detention illegal and unconstitutional. 8. Law is well settled in this regard that there is obligation on the Government to consider the representation of the detenu without any delay. The Hon'ble Apex Court in 'K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India & Ors.', (1991) 1 SCC 476 , it was held that : "10. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. it is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible." 9. Similarly, in 'Ankit Ashok Jalan v. Union of India & Ors.', (2020) 16 SCC 127 , the Hon'ble Apex Court held as under : "17. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in following four categories: 17.1. If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in following four categories: 17.1. If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board. 17.2. If the representation is received just before the reference is made to the Advisory Board and there is no sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul and Haradhan Sahal the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation. 17.3 If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha, the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board. 17.5 If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition." 10. In view of the aforesaid, non-consideration of the representation has vitiated the proceedings, accordingly, this petition is allowed. The impugned detention order No. 69/DMP/PSA/2019, dated 19.07.2022, passed by the District Magistrate, Pulwama, is quashed. The detenu-Sahil Nisar Malik S/o Nisar Ahmad Malik R/o New Colony, Pulwama, Tehsil & District Pulwama is directed to be released from custody forthwith, provided he is not required in any other case. 11. Detention record be returned to the learned counsel for the respondents by the Registry.