Sajad Mehmood vs State and Others

This petition under Section 103 of the Constitution of J&K State read with Article 226 of the Constitution of India has been filed for quashing

detention order No.6/PSA/2003 of 2003 communicated to the petitioner vide letter No. DMR/6670 dated 30.12.2003 and directing the release

of the petitioner.

Learned counsel for the petitioner has assailed the order of detention on number of grounds, however, he has restricted his submission on the

sole ground that the representation submitted by the petitioner has not been decided. It was submitted by learned counsel for the petitioner that the

order of detention has been issued without application of mind as the detenue at the time of issuance of the detention order was already in the

custody of police in FIR No. 142 of 2003 under Sections 307/120B/121/122/124A RPC registered with Police Station Thannamandi and there

was no likelihood of the petitioner being released on bail. It was further contended that in fact the petitioner had not applied for bail, as such, there

was no compelling reason to detain the petitioner. Learned counsel also submitted that no period of detention was shown in the detention order.

Respondents have filed counter in which it has been admitted that petitioner was in custody when the order of detention was passed but the

detention order was passed, as there was every eventuality of detenue being released on bail. Respondents have not denied the fact of filing of

representation by the detenue and its pendancy.

Respondents were directed to produce the record vide order dated 9.8.2005. Thereafter on 23.9.2005 learned Counsel for the respondents

sought time for seeking instructions. But record has not been produced. Mr. B.S. Salathia, learned AAG pointed out that he has informed the

respondents that record has to be produced but despite knowledge record has not been produced for the reasons best known to the respondents.

The sole contention of the learned counsel for the petitioner is that representation submitted by the detenue has not been decided and it has the

effect of violating the constitutional guarantee of earlier disposal of the representation. In Rama Dhondu Borade v. V.K. Saraf, Commissioner of

Police and Ors., AIR 1989 SC 1861 the Apex Court has held as under:

The detenue has an independent constitutional right to make his representation under Art. 22(5) of the Constitution. Correspondingly, there is a

constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the

detention order clamped upon him and requesting for his release, to consider the said representation within reasonable dispatch and to dispose the

same as expeditiously as possible. This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in

breach, it would amount to negation of the constitutional obligation rendering the continued detention constitutionally impermissible and illegal, since

such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Art. 21 of the Constitution. True, there is no

prescribed period either under the provisions of the Constitution or under the concerned detention law i.e. National Security Act, within which the

representation should be dealt with. The use of the words ""as soon as may be"" occurring in Art. 22(5) of the Constitution reflects that the

representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense of urgency and without

avoidable delay. What is reasonable dispatch depends on the facts ad circumstances of each case and no hard and fast rule can be laid down in

that regard. However, in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and

the explanation offered by the authority is so unsatisfactory, such delay could vitiate the order of detention.

In K.D. Shiekh v. District Magistrate Ahmedabad, AIR 1996 SC, 2998, the Apex Court has held as under:

Turing now to the main question relating to the early disposal of the representation, we may immediately observe that this Court, in a large

number of cases, has already laid down the principle in clear and specific terms that the representation has to be disposed of at the earliest and if

there has been any delay in the disposal of the representation, the reasons for the delay must be indicated to the Court or else the unexplained

delay or unsatisfactory explanation in the disposal of the representation would fatally effect the order of detention and in that situation, continued

detention would become bad.

Similar proposition came up for consideration before Allahabad High Court in Sarmister v. Superintendent District Jail Muzaffarnagar and Ors.,

reported as 1999 (1) CCrJ, 601 and their lordships, relying upon a full bench decision of the same Court in Raj Bhadur Yadav v. State of U.P and

Ors., held as under:

In view of the clear mandate of law requiring all the concerned Authorities, the Advisory Board, the appropriate Government and the Central

Government, before whom the detenue is entitled to plead/represent for revocation/modification of the detention order should act with promptitude

and reasonable dispatch no distinction can be made while judging the matter of delay on the part of the State Government (appropriate

Government or the Central Government. It needs no emphasis that in dealing with a matter of personal liberty of a citizen the authority, whether it is

specifically required by a provision under the Act or not, should act with utmost promptitude in disposing of the representation.

From a bare reading of the counter affidavit filed by the respondents it is clear that the respondents have not denied in clear terms the filing of

representation by the detenue nor respondents have stated anything regarding the disposal of the representation. When the representation is not

decided expeditiously it causes serious prejudice to the detenue. That being so, the valuable right guaranteed under Art. 22 of the Constitution of

India read with Section 13 of Jammu and Kashmir Public Safety Act, has been violated, therefore, the detention becomes illegal and bad in law.

For the above reasons this petition is allowed and the order of detention bearing Order No.6/PSA/2003 of 2003 communicated to the

petitioner vide letter No. DMR/6670 dated 30.12.2003, issued by District Magistrate, Rajouri, is quashed. Respondents are directed to release

the detenue, namely, Sajad Mehmood S/O Bashir Ahmed R/O Rajdhani tehsil Thanamandi District Rajouri, from the preventive detention

forthwith, provided he is not required in any substantive offence(s).