Irfan Mehraj Bhat vs UT Of J&K And Anr

Sanjay Dhar, J

1) Challenge in this petition is to the order No.56/DMA/PSA/DET/2021 dated 14.02.2022, issued by District Magistrate, Anantnag-respondent No.2 herein, in terms whereof, Irfan Mehra Bhat (hereinafter referred to as the detenue), has been placed under preventive custody and lodged in Central Jail, Kotbhalwal, Jammu.

2) The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague; that there has been non-application of mind on the part of detaining authority; that whole of the material forming the basis of the impugned order of detention has not been provided to the detenue.

3) The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been detained only after following the due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention record to lend support to the stand taken in the counter affidavit.

4) Considered the rival submissions and perused the material available on the file as also the detention records produced by learned counsel for the respondents.

5) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments was on the following grounds:

(I) That the grounds of detention are vague and cryptic, inasmuch as the material particulars of the terrorists of banned organization LeT, as mentioned in the grounds of detention, have not been disclosed, which prevented him from making an effective representation against his detention.

(II) That although a representation was submitted against the detention by the detenue through his father before the respondents yet the same has not been considered thereby rendering the detention order unsustainable in law.

6) So far as the first ground regarding vagueness of the averments made in the grounds of detention, is concerned, the same, on perusal of the record, appears to be forceful. There is no mention of the particulars of the place, the identity of the persons/terrorists alleged to have received support of the petitioner and the particulars of the period in the grounds of detention. These grounds, being vague and lacking in material particulars, as such, the detenue could not have made an effective representation against his detention, on the basis of these vague allegations. Thus, there has been violation of constitutional guarantees envisaged under Article 22(5) of the Constitution. The detention order, as such, is illegal and unsustainable. In my aforesaid view, I am fortified by the judgments of the Supreme Court in the case of Jahangirkhan FazalKhan Pathan vs. Police Commissioner, Ahmadabad, (1989) 3 SCC 590, Abdul Razak Nanekhan Pathan v. Police Commissioner, Ahmadabad, AIR 1989 SC 2265, Mohd. Yousuf Rather vs. State of J&K & Ors, 1979 4 SCC 370 and Piyush Kantilal Mehta vs. Commissioner of Police, Ahmedabad City and Ors. 1989 (1) Crimes 176 (SC).

7) The next ground projected by the petitioner is that he had submitted a representation against his detention but the same has not been considered by the respondents.

8) It has been specifically contended by the petitioner that he had made a representation against his detention through his father, which, seemingly, has been received by the office of District Magistrate, Anantnag, on 22.02.2022. The copy of the representation bears the endorsement of the office of the District Magistrate concerned. The petitioner has specifically pleaded in ground (xii) of his petition that he made a representation before the Detaining Authority but the same has not been placed before the Advisory Board. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit. The detention record does not suggest that the said representation has been either placed before the Advisory Board or considered by the Board. The failure of the respondents to place the representation submitted by the detenue before the Advisory Board and its consequent non-consideration indisputably amounts to violation of constitutional safeguards provided the provisions of Article 22(5) of the Constitution. In this regard, a reference to the judgment of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559, would be relevant. In Para 4 of the aforesaid judgment, the Court observed as under:-

“4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads:

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

This Sub-Article provides, inter alia, that the detaining authority shall as soon as may communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution.”

9) From the aforesaid legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law.

10) For the foregoing reasons, the impugned order of detention deserves to be quashed. Accordingly, the petition is allowed and impugned order of detention is quashed. The detenue, if not, needed in any other case, be released from custody forthwith.

11) The record, as produced, be returned to the learned counsel for the respondents.