Uzair Riyaz Parray v. Union Territory of J&K

Judgment

1. Through the medium of this petition, Order no. 07/DMP/PSA/24 dated

10.01.2024 (impugned detention order) passed by District Magistrate, Pulwama – respondent no. 2, (for short „detailing authority‟) whereby detenu, namely, Uzair Riyaz Parray, S/o Riyaz Ahmad Parray R/o Ashmender Tehsil Pulwama District Pulwama, has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State is sought to be quashed and the detenu set at liberty on the grounds made mention of therein.

2. The case set up by the petitioner in the petition is that the detenu was arrested without any reason in the month of October, 2024 and was taken to Police Station, Pulwama where he was detained illegally for several months and thereafter was shifted to Central Jail Kotbhalwal, Jammu to be detained in terms of impugned order dated 10.01.2024 under the provision of Public Safety Act. The respondent No. 2 has passed the impugned detention order against the detenu mechanically without application of mind as he had already been admitted to bail under Section 107 Cr. PC but this important fact has not been mentioned in the grounds of detention ; inasmuch as the detaining 1 HCP No. 26/2024

authority has not applied its mind to the facts of the case but has acted on the report submitted by Senior Superintendent of Police, Pulwama, as the grounds of detention do not indicate any criminal proceedings allegedly initiated under Section 107/151 Cr. PC, for which he has been bound down for keeping peace and tranquillity; inasmuch the detaining authority has mentioned various allegations in the grounds of detention, however no specific allegation has been given regarding the detenu in the cases mentioned in the grounds of detention, not even an iota of connection is given in the grounds of detention connecting the detenu with the allegations. It is also stated that the detenu has developed a deep passion towards terrorism and providing them food, shelter, information about their movements and also transportation of arms etc., however, he has no connection with any terrorist organization or with terrorist cadres, being vague, imaginary and without basis. It is further stated that detenu is not involved in any criminal activity nor any FIR is registered against him regarding any prejudicial activity, as such, there was no compelling reason for detaining authority to pass impugned detention order. The detenu is stated to have not been provided all the material relied upon by detaining authority.

3. It is also averred that detaining authority has passed the impugned detention order mechanically without application of mind, inasmuch as the representation submitted by the detenu has not been considered nor relevant material as requested has been furnished to the detenu when the detaining authority is constitutionally duty bound to furnish the same. However, in the instant case, whatever material has been furnished to the detenu, same is vague, imaginary, non–existent and without basis. The detenu is neither associated with any organization nor involved in any such activities which are prejudicial to the security of the State.

4. Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State and, therefore, his remaining at large is a threat to the security of State. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been 2 HCP No. 26/2024 relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant.

5. I have heard learned counsel for parties and considered the matter. I have gone through the detention record produced by the counsel appearing for respondents.

6. There is also a submission on the part of learned counsel for petitioner that detenu was not provided all the material relied upon by detaining authority. To consider this submission, I have gone through the detention record produced by learned counsel for respondents. Perusal of “Execution Report” as also “Receipt of Grounds of detention & other relevant record” would reveal that detenu, besides other material, copies of FIR, statements of witnesses and other related relevant documents have been furnished to detenu. It would be appropriate to reproduce relevant portion of Execution Report as under: “The detention order (01 leaf), Notice of detention (01 leaf) grounds of detention (03 leaves) Dossier of detention (03 leaves) copies of FIR, statements of witnesses and other related relevant documents (02leaves) Total 10 leaves) have been handed over the above said detenu…..”

7. Relevant portion of “Receipt of Ground of detention & other relevant record” is also reproduced hereunder: “Received copies of detention order (01 leaf), Notice of detention (01 leaf) grounds of detention (03 leaves), Dossier of detention (03 leaves) Copies of FIR, Statements of witnesses and other related relevant documents (02 leaves) Total 10 leaves through executing officer ……”

8. When above “Execution Report” as also “Receipt of Grounds of detention & other relevant record” are read together with grounds of detention made by detaining authority, it reflects total non-application of mind. Bare perusal of grounds of detention does not show or suggest any FIR registered or lodged against detenu whereas perusal of aforesaid “Execution Report” as also “Receipt of Grounds of detention & other relevant record” reveals that copies of FIR, Statement of Witnesses etc., have been given to detenu. Thus, this important aspect of the matter indicates non-application of mind and result thereof is that it vitiates impugned detention.

9. On the contrary, Mr. Jahingeer A Dar, GA, while opposing the submission of Mr. Wajid Haseeb, would vehemently contend that the order under challenge has been passed by the detaining authority validly and legally owing to the activities of detenu being prejudicial to the Security of the State. 3 HCP No. 26/2024

10. The next ground taken by the learned counsel for petitioner is that the representation by detenu through his mother post detention has neither been considered nor decided nor any notice/information about any decision taken thereon has been conveyed or communicated so far to petitioner, thereby violating the guaranteed rights of petitioner and consequently vitiating impugned order of detention. According to him it is only by virtue of the Reply filed by respondent no.2 that petitioner has come to know that the representation filed by mother of detenu has been rejected.

11. Although in their reply, respondents stated that they have considered and rejected the representation of mother of detenu, yet the rejection order has neither been conveyed to him nor appears to have been sent to Advisory Board, which vitiates impugned order of detention.

12. It is well settled that detaining authority must provide detenu a very early opportunity to make a representation. The detaining authority is also required to consider the representation as soon as possible and this preferably must be before the representation is forwarded to Advisory Board. The representation must be forwarded to Advisory Board before the Board makes its report. The consideration by detaining authority of representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. The appropriate Government/detaining authority is to exercise its opinion and decision on the representation of detenu before sending the case along with detenu‟s representation to Advisory Board. Reference in this regard is made to JayanarayanSukul v. State of W.B. (1970) 1 SCC 219; Pankaj Kumar Chakraborty v. State of W.B. (1969) 3 SCC; FrancesCorallie Mullin v. W.C. Khambra (1980) 2 SCC 275; and Ankit Ashok Jalan v. Union of India and others, (2020) 16 SCC 127.

13. Right to make a representation is an enshrined right guaranteed under Article 22(5) of the Constitution of India. It incorporates a dual requirement: first, it requires detaining authority to communicate grounds of detention as soon as may be; and second, it requires to afford detenu an earliest opportunity to make a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression “as soon as may be” imports a requirement of immediacy. The communication of grounds is in aid of 4 HCP No. 26/2024 facilitating right of detenu to submit a representation against order of detention. In absence of grounds being communicated, detenu would be left in the dark about the reasons which have led to issuance of order of detention. The importance which the constitutional provision ascribes to communication of grounds as well as affording of an opportunity to make a representation is evident from the use of the expression “as soon as may be” in the first part in relation to communicating the grounds and allowing the detenu “the earliest opportunity” of availing of the right to submit a representation. Thus, the significance of Article 22 of the Constitution is that representation submitted by detenu must be disposed of at an early date. The communication of grounds of detention, as soon as may be, and the affording of earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless detaining authority deals with representation and communicates its decision with expedition.

14. Section 13 J&K Public Safety Act contains a requirement that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention communicate to him, in the language which is understandable to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation, against the order to the Government.

15. Article 22(5) of the Constitution provides for communication of grounds on which order of detention is made by detaining authority “as soon as may be”. Section 13 (1) of the Act uses the expression “as soon as may be”, qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and, in exceptional circumstances, for reasons to be recorded in writing not later than ten days from the date of detention. Section 8(1) of the Act, thus, also embodies the second requirement of Article 22(5) of affording to detenu the earliest opportunity of making a representation against the order to the appropriate government.

16. Section 15 of the Act mandates a reference to the Advisory Board constituted under Section 14 of the Act. What Section 15 says is profitable to be reproduced hereunder: 5 HCP No. 26/2024 “Section 15. Reference to Advisory Board. In every case where a detention order has been made under this Act, the Government shall, within four weeks from the date of detention under the order place before the Advisory Board constituted by it under section 14, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also report by such officer under sub-section (4) of section 8.”

17. Under Section 15 of the Act, the appropriate government has to place the grounds on which the order of detention has been made within four weeks from the date of detention of the person together with a representation, if any, made by the person affected by the order of detention before the Advisory Board constituted under the provisions of Section 14 of the Act. The Advisory Board, under the provisions of Section 16 of the Act, after considering the material placed before it and after calling for such further information as it may deem necessary from the Government or from the person called for the purpose through the Government or from the person concerned and if in any particular case it considers it essential so to do or, if the person concerned desires to be heard, after hearing him in person, submit its report to the Government within six weeks from the date of detention.

18. Article 22(5) of the Constitution reflects keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and, therefore, it incorporates procedural safeguards which mandate immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by detenu must be disposed of at an early date. The communication of grounds of detention, as soon as may be, and affording of earliest opportunity to submit a representation against order of detention will have no Constitutional significance unless detaining authority deals with representation and communicates its decision with expedition.

19. The Supreme Court in the case of Jayanarayan Sukul (supra) laid emphasis on the expeditious consideration of the representation by the appropriate government. The Supreme Court held that there was an inordinate delay in considering representation of petitioner. It was observed: “18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The 6 HCP No. 26/2024 personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. […] 20. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the the detenu as early as possible. Secondly, the representation of consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board.” (emphasis supplied)

20. As has been held by the Supreme Court in Jayanarayan Sukul (supra), four principles are required to be followed with respect to representation of a detenu. First, appropriate authority is bound to give an opportunity to detenu to make a representation and to consider it as early as possible. Secondly, consideration of detenu‟s representation by appropriate authority is entirely independent of any action by Advisory Board including consideration of representation of detenu by Advisory Board. Thirdly, there should not be any delay in the matter of consideration and it has to be remembered that Government has to be vigilant in governance of citizens. A citizen‟s right raises a correlative duty of the State. Fourthly, appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu‟s representation to Advisory Board.

21. In the case of Ankit Ashok Jalan (supra) it was observed by the Supreme Court that consideration of representation(s) by appropriate Government and by Advisory Board would always be qualitatively different and the power of consideration by appropriate Government must be completely independent of any action by Advisory Board. In the case of Pankaj Kumar Chakrabarty (supra) it was stated by the Supreme Court that the obligation on the part of the Government to consider representation would be irrespective of whether the representation was made before or after the case was referred to the Advisory Board. Any delay in consideration of representation would not only 7 HCP No. 26/2024 be an irresponsible act on the part of appropriate authority but also unconstitutional.

22. In Sarabjeet Singh Mokha v. District Magistrate Jabalpur and others reported in (2021) 20 SCC 98, the Supreme Court has reproduced certain observations made by the Supreme Court on the consideration of representation by appropriate government and by the Advisory Board in Ankit Ashok Jalan (supra), which are reproduced hereunder: “39. In a recent decision of a three judge Bench of this Court in Ankit Ashok Jalan v. Union of India51, Justice UU Lalit revisited the body of precedent on the subject and noticed the qualitative difference between the consideration of a representation by the appropriate government on the one hand and by the Advisory Board on the other. Justice UU Lalit, speaking for himself and Justice Indu Malhotra (with Justice Hemant Gupta dissenting52) observed: laid down “16. These decisions clearly the consideration of representations by the appropriate Government and by the Board would always be qualitatively different and the power of consideration by the appropriate Government must be completely independent of any action by the Advisory Board. In para 12 of the decision in Pankaj Kumar Chakrabarty [Pankaj Kumar Chakrabarty v. State of W.B., (1969) 3 SCC 400 : (1970) 1 SCR 543] it was stated that the obligation on the part of the Government to consider representation would be irrespective of whether the representation was made before or after the case was referred to the Advisory Board. As stated in para 18, this was stated so, as any delay in consideration of the representation would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional. The contingency whether the representations were received before or after was again considered in para 29 of the decision in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] .” Justice UU Lalit categorized the different stages for when a representation is received and disposed, with the underlying principle that the representation must be expeditiously disposed of, at every stage: “17. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in the following four categories: 17.1. If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board. 17.2. If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] and Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation. 17.3. If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816], the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board. 17.4. If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition. 8 HCP No. 26/2024

23. In the case in hand, it is an admitted position that representation had been made by detenu through his mother to respondent no.2, which, according to respondent no.2, was rejected. However, there is nothing on record to show that rejection of representation has been forthwith communicated to detenu/petitioner inasmuch as rejection of representation, according to counsel for petitioner, has to come fore only when respondent no.2 filed counter affidavit. It is pertinent to mention here that it is not only consideration and/or rejection of representation of detenu, but it is important to communicate such a rejection with reasons to detenu/petitioner. In the event there is any delay in supplying/ communicating the order of rejection of the representation to the detenu/ petitioner, it would also cause prejudice to the detenu as he would be deprived of his right to seek remedy vis-à-vis the order of rejection, which may prove fatal to the order of preventive detention. Thus, it is fundamental to interfere with the order of detention in view of failure of respondents to communicate rejection of representation to detenu/petitioner inasmuch as non-communication and/or delay communication of rejection of representation to detenu/petitioner forms a part of infraction on detenu‟s constitutional right under Article 22(4) of the Constitution of India. Reference is made to Biren Dutta v. Chief Commissioner of Tripura, AIR 1965 SC 596; State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35; and Khaja Bilal Ahmed v. State of Telangana, 2020 (13) SCC 596.

24. For the reasons discussed above, the detention Order no. 07/DMP/PSA/24 dated 10.01.2024, passed by District Magistrate, Pulwama, is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case.

25. Disposed of.

26. Registry to return detention record to learned counsel for respondents. Srinagar 01.08.2025 (Qazi Amjad, Secy) (Vinod Chatterji Koul) Judge QAZI AMJAD YOUSUF I attest to the accuracy and authenticity of this document

04.08.2025 14:29 9 HCP No. 26/2024