Jammu and Kashmir and Ladakh High Court: While considering the instant petition challenging the preventive detention order passed by the District Magistrate, Srinagar against the detenue on several grounds including non-consideration of representation of the detenue against the impugned order, the Bench of Sanjay Dhar, J.*, allowing the petition stated that non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Art. 22(5) of the Constitution, which in turn renders the detention unsustainable in law.
The detenue was put in preventive detention in Central Jail, Jammu (Kotbhalwal), to prevent him from indulging in the activities which are prejudicial to the security of the State.
The counsel for the detenue contended that the impugned order was issued without application of mind and that the charges against the detenue have been fabricated. Furthermore, it was alleged that the grounds for detention are vague and procedural safeguards have not been complied with. The detenue specifically contended that his representation against the impugned order of detention has not been considered.
Per contra, the respondents argued that detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention but despite that he has not chosen to file any representation.
Perusing the facts of the case and contentions raised, the Court noted that there is substance in the detenue’s contention that he was disabled from making an effective representation against the order of detention as the material, which formed basis of the grounds of detention and the consequent order of detention, has not been furnished to him. The Court thus found that vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.
Taking note of the detenue’s specific contention that he had made a representation against his detention through his father, which, seemingly, has been received by the office of District Magistrate, Srinagar, however the same was not considered. The Court also noted that these assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit.
The Court stated that that non-consideration of the representation indisputably amounts to violation of constitutional safeguards provided the provisions of Art. 22(5) of the Constitution.
With the afore-stated assessment, the Court thus allowed the petition and directed the release of the detenue from preventive custody provided he is not required in connection with any other case.
[Bilal Ahmad Ganie v. UT of J&K, 2023 SCC OnLine J&K 668, decided on 19-09-2023]
*Judgment by Justice Sanjay Dhar
Advocates who appeared in this case :
For detenue/ petitioner- Wajid Haseeb, Advocate
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