Reg. List v. UT OF JK & Anr.

Through: Mr. Furkan Yaqoob, GA with Ms. Shaila, Assisting Counsel CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE HON’BLE MR. JUSTICE M.A CHOWDHARY, JUDGE Pe

This intra-court appeal is directed against the judgment

O R D E R 05.09.2024 dated 10.05.2024 passed by the learned writ court, whereby the writ petition filed by the appellant against the order of detention bearing NO. DMB/PSA/43 of 2022 dated

16.09.2022 u/s 8 of J&K Public Safety Act, 1978 has been dismissed.

The learned counsel for the appellant has submitted that the learned writ court has not adverted to the grounds raised in the writ petition and without considering the grounds, has dismissed the writ petition. Learned counsel for the appellant further submitted that the appellant undertakes that he will not make any inflammatory or anti national speech under the garb of religious sermons.

Per Contra, Mr. Furkan Yaqoob, learned GA submits that the learned writ court has considered the grounds urged by the appellant in the writ petition and the learned writ court after considering the same has passed the well-reasoned order, as such, no interference is warranted at all. Heard and perused the record.

While pursuing the record, we find that a representation was submitted by the son of the appellant against the order of detention, which was forwarded vide communication dated

13.10.2022 by the Deputy Secretary to the Government, Home Department to the Chairman, Advisory Board constituted under the J&K Public Safety Act, 1978. The record further depicts that the Advisory Board vide its report dated 17.10.2022 opined in favour of detaining the appellant under section 8 of the Act (Supra) but while doing so has not considered the representation submitted by the son of the appellant.

The record further depicts that vide communication dated

02.06.2023 Deputy Secretary the Government, Home Department informed respondent No. 2 about the rejection of the representation.

From the record we have not come across any documentary evidence demonstrating that the appellant or his son was informed by the respondent No. 2 in respect of rejection of his representation against the order of detention.

Once the representation against the order of detention is submitted by the detenue or any family member on his behalf, then the same is not only required to be decided by the Detaining Authority or the Government as soon as possible but the decision so taken upon the representation is also required to be communicated to the detenue and if the same is not done, it amounts to violation of Article 22(5) of the Constitution of India.

In “Ummu Sabeena Vs. State of Kerala reported as (2011) 10 SCC 781”, the Hon’ble Supreme Court of India has held that the history of personal liberty, as is well known, is a history of insistence on procedural safeguards. The expression ’as soon as may be’, in Article 22(5) of the Constitution of India, clearly shows the concern of the makers of the Constitution that the representation, made on behalf of detenue, should be considered and disposed of with a sense of urgency and without any avoidable delay.

In “Sarabjeet Singh Mokha v. DM, Jabalpur, (2021) 20 SCC 98”, the Hon’ble Supreme Court of India has held as under:

By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu “as soon as may be” and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate Government are intended to ensure that the representation of the detenu is considered by the appropriate Government with a sense of immediacy. The State Government failed to do so. The making of a reference to the Advisory Board could not have furnished any justification for the State Government not to deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Governments in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA. The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution. (emphasis added)

It appears that the issue of representation as considered by us, has escaped the attention of the learned writ court.

In view of above, we are of the considered view that the order of detention is not sustainable in the eyes of law. Accordingly, the judgment dated 10.05.2024 passed by the learned writ court is set aside. The detention order bearing No. DMB/PSA/43 of 2022 dated 16.09.2022 is quashed. As the appellant has himself volunteered to furnish an undertaking that he would not make any anti-national or inflammatory speech against any community/religion, therefore, we direct the appellant to furnish an undertaking before the District Magistrate concerned, to that effect. Appellant be released forthwith, if not required in any other case.

Record returned to learned G.A after perusal.

Disposed of. (M.A CHOWDHARY) JUDGE JUDGE (RAJNESH OSWAL) SRINAGAR 05.09.2024 “Syed Nuzhat”