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Judgment
Javed Iqbal Wani, J
1) Challenge in this petition is thrown to the order bearing No.DMS/PSA/64/2021 dated 20.10.2021, issued by District Magistrate, Srinagar(for brevity “Detaining Authority”) whereby Shri Showkat Ahmad Ganieson of Abdul Rahim Ganie resident of Old Barzulla, Srinagar (for short “detenue”) has been placed under preventive detention and directed to be lodged in District Jail, Kupwara.
2) It is being stated in the petition that the detenue is a law abiding andpeace loving citizen and has never involved in any subversive activityprejudicial to the public order or security of the State. The detenue isstated to have been arrested in the second week of October, 2021 and was taken to Police Station, Saddar, and while being in custody came to bedetained under preventivecustodyby therespondentsin termsofimpugnedorder.
3) The impugned order is being challenged on the grounds inter-alia thatdetenue had not beenprovided copies of the relevant material like copy of dossier or any other material which formed the basis of the grounds of detention, thus depriving him to file an effective representation againsthisdetention.Thesaidfailureisstatedtohaveinfringedtheconstitutional right of the detenue guaranteed under Article 22 (5) oftheConstitutionof India.
4) It is being next urged in the grounds of challenge that although arepresentationwassubmittedagainstthedetentionby thedetenuethrough his wife before the respondents yet same was not consideredrendering thedetentionorder,assuch, notsustainableinlaw.
5) Per contra, respondents in their reply affidavit filed in opposition tothe petition resist and controvert the contentions raised and groundsurged by the petitioner and have stated in their reply affidavit that theorder of detention is preventive and not punitive in nature, while it isbeing admitted by respondents that detenue was detained pursuant toimpugnedorder.
6) Itisbeingstatedthatallstatutoryrequirementsandconstitutionalguaran tees have had been fulfilled and complied with while detainingthedetenue.
7) Itisbeingnextstatedthatimpugnedorderwasexecutedby oneMohammad Mukhtar No.579/CID of P/S Sadder on 27.10.2021 andthat the detenue was handed over to the Superintendent concerned,forlodgmentandthatthecontentsofdetentionorder/warrant and grounds of detention were read over and explainedto the detenue in the language which he fully understood and in lieuthereofthedetenuesubscribedhissignaturesontheexecutionreport/order.
8) It is being further stated that the detenue was well informed about theright of making his representation and that despite having received theentire material the detenue did not chose to make any representationagainst hisdetention.
9) It is being next stated that the Advisory Board after considering thematerial placed before it, in terms of Section 16 of the Act held thatthereissufficientcausefordetentionofthedetenue,whereuponreceipt of the said opinion of theAdvisory Board the Governmentconfirmed order of detention against the detenue. Respondents in theprocess are stated to have complied with all statutory, constitutionalprovisions and followed all requisite formalities without violating anyofthem.
10) Heardlearnedcounselforthepartiesandconsideredthematter.
11) Coming to the first ground of challenge noted in the preceding paras, that the material which formed the basis of the grounds of detention has not been furnished to the detenue. Upon perusal of the detention record it gets revealed that only two leaves consisting of copies of detention warrant and grounds of detention have been furnished to the detenue, which clearly shows that the copy of dossier and other material which has formed the basisof the order of detention have not been furnished to the detenue thereby depriving him from making an effective representation against his detention. It needs no emphasis that the detenue cannot be expected to make a meaningful exercise of his constitutional and statutory rightsguaranteed under Article 22(5) of the Constitution of India. Failure on the part of detaining authority to supply whole of the material relied upon by it at the time of passing impugned detention order renders the impugned order illegal and unsustainable.The aforesaid position is supported by the view of the Apex court taken in case titled as “Sophia GulamMohd. Bham v. State of Maharashtra &ors (AIR 1999 SC 3051), ThahiraHaris etc. etc. Vs. Government of Karnataka &Ors (AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440.
12) The second ground of challenge urged in the petition is that thepetitioner submitted a representation against his detention whichhad notbeen consideredbythe respondents.
13) Perusaloftherecordofthepetitionrevealsthatarepresentation has been made on behalf of the detenue by hisfatherseeminglyhavingbeenreceivedbytheoffice of District Magistrate, Srinagar, on 01.11.2021. The saidcontention has not been denied by the respondents in their replyaffidavit thus resulting into drawing an adverse inference againstthe respondents in this regard. The failure of the respondents toconsider the representation submitted by the detenue indisputablyamounts to violation of the provisions of Article 22(5) of theConstitution.Areferenceinthisbehalftothejudgementofthe Apex Court passed in casetitled as Rahmatullah Vs. State ofBiharandOrs.,reportedin1979(4)SCC559,wouldberelevant and germane here wherein at Para 4, it is noticed andobservedasunder:-
“4. The normal rule of law is that when a personcommits an offence or a number of offences, heshould be prosecuted and punished in accordancewith the normal appropriate criminal law; but if heis sought to be detained under any of the preventivedetentionlawsasmayoftenbenecessar ytoprevent further commission of such offences, thenthe provisions of Article 22(5) must be compliedwith.Sub- Article(5)ofArticle22 reads:
Whenanypersonisdetainedinpursuanceo fanordermadeunderanylawprovidingforpreven tivedetention,theauthoritymakingtheorder shall, as soon as may be, communicate tosuch person the grounds on which the order hasbeenmadeandshallaffordhimtheearliestopp ortunity of making a representation against theorder.
ThisSub-
Articleprovides,interalia,thatthedetainingauth orityshallassoonasmaybecommunicate the grounds of detention and shallaffordhim theearliestopportunityofmakingarepresentation against the order. The opportunityof making a representation is not for nothing.
Therepresentation, if any, submitted by the detenu ismeantforconsiderationbytheAppropriateAuth oritywithoutanyunreasonable delay,asitinvolvesthelibertyofacitizenguarante edbyArticle19oftheConstitution.Thenon-considerationoranunreasonablybelatedconsid eration of the representation tantamount tonon-compliance of Sub-Article (5) of Article 22 oftheConstitution.”
14) In view of the aforesaid position obtaining in the matter the othergroundsurgedinthepetitionneednottobedealtwithandessentiallypaleint oinsignificance.
15) The judgement referred to and relied upon by the counsel for therespondents titled as “Shiv RatanMakim Vs. Union of Indiaand Others, reported in 1986 SC 610”, is not applicable to thefactsandcircumstancesofthecasebeingmisplacedandmisdirected and does not lend any support thereof to the case oftherespondents.
16) Viewed thus, in the context what has been observed, analyzed andconsidered in the preceding pars, instant petition is allowed andconsequent to which the impugned order of detention bearing No.DMS/PSA/64/2021 20.10.2021, is quashed, with the directionthe respondents to release the detenue forthwith from preventive custody, unless the detenue is required in any other case.
17) The record, as produced, be returned to the learned counsel for the respondents.