Huzaif Mushtaq Matoo vs UT Of J&K And Anr

Moksha Khajuria Kazmi, J

District Magistrate, Srinagar (hereinafter called ‘Detaining Authority’) in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, passed the detention Order No. DMS/PSA/146/2021 dated 07.03.2022 (for short ‘impugned order’), in terms whereof the son of the petitioner namely Huzaif Mushtaq Matoo S/O Mushtaq Ahmad Matoo R/O Pampoosh Colony Noorbagh, Srinagar (for short ‘detenue’) was ordered to be detained and lodged in District Jail, Baramulla.

Though the detention order has been challenged on several grounds, but the main ground 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 representation is annexed with the writ petition.

The respondents have filed 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, Srinagar it has become necessary to prevent the detenue from acting in any manner prejudicial to the ‘security of the State’ to place him under preventive detention. It is submitted that the detention of the dentenu 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 and the right guaranteed to the detenu under the Constitution have strictly been followed. 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 detenu 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.

With regard to the allegation of non-consideration of the detenu’s representation, it is submitted by the respondents that the detenue was informed about his right to make a representation to the detaining authority or the Government but he has chosen not to file any such representation.

I have heard learned counsel for the parties and perused material on record including the detention record.

It has been contended that representation has been filed by the father of the detenue before the detaining authority as well as to Principal Secretary to Government Home Department, copy thereof is Annexure-II to the writ petition but despite pleading specifically in para J & K of the writ petition that representation stands filed, respondents in their counter affidavit, except mentioning that the detenue was informed about his right of filing the representation against his detention, has not filed any representation, while as, annexure-II, i.e, representation reflects that respondents have received the representation against proper receipt but have not considered the same till date.

From the perusal of the detention record, produced by Mr. Sajad Ashraf, Government Advocate, it does not reveal or indicate anything with regard to receipt or disposal of the representation. It is thus, evident that representation filed by the detenue through his father, i.e, petitioner herein in the month of March. 2022, has not been considered by the respondents so far.

Admittedly, the copy of representation dated 14.03.2022, has been received by the respondents on the same day, which has not been considered by the respondents till date. There is no mention with regard to the said representation either in the counter affidavit or in the detention record. In these circumstances, this Court is left with no option but to accept the stand of the petitioner that representation against his detention order was made, and the same has not been considered.

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 be breach of constitutional safeguards and would render the detention of the detenu as illegal. Every day 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.

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.

Having gone through the observations of the Supreme Court in the aforesaid cases, this Court is of the considered view that the said decisions with all force are applicable to the instant case. Therefore, the detention order is liable to be quashed.

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 must succeed.

Accordingly, the writ petition is allowed and the impugned detention Order No. DMS/PSA/146/2021 dated 07.03.2022 is quashed. The Jail Superintendent concerned is directed to release the detenue namely, Huzaif Mushtaq Matoo S/O Mushtaq Ahmad Matoo R/O Pampoosh Colony Noorbagh, Srinagar forthwith, if his detention is not required in connection with any other criminal case(s).

Disposed of.

Registry to return the record to learned counsel for the respondents forthwith.