'Delay in Considering Representation and Non-Communication of Outcome Vitiates Detention': J&K High Court Quashes Order Under Public Safety Act
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh at Srinagar, Single Bench of Justice Sanjay Dhar, held that non-consideration of a detenue’s representation within a reasonable time, and failure to communicate its outcome, constitutes a violation of the safeguards under Section 13 of the Jammu and Kashmir Public Safety Act, 1978. The Court recorded that the delay in deciding the representation and the absence of any communication rendered the detention legally unsustainable. The detention order was accordingly quashed.
The petitioner assailed detention order No. 02/DMA/PSA/DET/2024 dated 11.01.2024 issued by the District Magistrate, Anantnag, under the Jammu and Kashmir Public Safety Act, 1978. In terms of the said order, the petitioner was placed under preventive detention and lodged at Central Jail, Kot Bhalwal, Jammu, purportedly to prevent him from acting in a manner prejudicial to the security of the Union Territory of Jammu and Kashmir.
Through counsel, the petitioner submitted that the detention order had been passed in a mechanical manner and without application of mind. It was contended that the allegations forming the basis of the grounds of detention lacked any nexus with the petitioner and had been fabricated to justify an arbitrary exercise of power. It was further asserted that the grounds of detention were vague and incapable of enabling a prudent person to make an effective representation.
The petitioner further argued that the procedural safeguards mandated under law had not been complied with. Specifically, it was contended that the full material forming the basis of the detention order had not been supplied, and the representation filed by the detenue had not been considered by the respondents. The delay in consideration of the representation was projected as a violation of the detenue’s fundamental rights under Article 22(5) of the Constitution and Section 13 of the Jammu and Kashmir Public Safety Act.
In response, the respondents submitted that the detention order, along with the grounds and relevant material, had been provided to the detenue and duly explained to him. It was asserted that the detenue had been informed of his right to make a representation and that all constitutional and statutory obligations had been fulfilled. The reply affidavit was supported by the detention record, which, according to the respondents, demonstrated compliance with legal requirements.
The Court noted that the petitioner’s principal grievance pertained to the alleged failure of the respondents to consider his representation in a timely manner. The Court found, upon perusal of the record, that the petitioner had filed a representation dated 27.02.2024 and that the government had subsequently rejected the same. It was recorded that communication in this regard was made by the Deputy Secretary to Government, Home Department, to the District Magistrate, Anantnag, through communication No. Home/PB-V/19-2023(7389997) dated 27.06.2024.
The Court observed that the representation had been received by the authorities in the third week of March 2024, as evidenced by a communication dated 23.03.2024 forming part of the detention record. It noted that the representation was disposed of after approximately three months. Referring to settled legal position, the Court stated that such delay was impermissible.
The judgment cited the Supreme Court’s decision in Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others (2021) 20 SCC 98. Quoting paragraph 47 of the decision, the Court recorded the following:
“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... 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.”
Applying the above principle, Justice Dhar held that the delay in considering the petitioner’s representation violated Section 13 of the Jammu and Kashmir Public Safety Act. The Court observed that Section 13 obligates the detaining authority to furnish the grounds of detention within ten days from the date of detention and to provide the earliest opportunity for representation. It was further recorded that:
“Failure to decide the representation of a detenue within a reasonable time in an expeditious manner strikes at the valuable right of a detenue emanating from the provisions of Section 13.”
Additionally, the Court examined whether the result of the representation had been conveyed to the detenue. It noted that the record only showed an inter-departmental communication between the Home Department and the District Magistrate and did not indicate that the rejection had been conveyed to the petitioner. The Court once again relied on the judgment in Sarabjeet Singh Mokha, stating:
“Failure of the government to communicate rejection of detenue’s representation in a time bound manner is sufficient to vitiate the detention order.”
Thus, both on account of delayed consideration and lack of communication to the detenue, the Court concluded that the procedural safeguards had been infringed.
Based on the findings recorded, the High Court quashed the preventive detention order. The operative part of the judgment stated:
“For the foregoing reasons, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from preventive custody forthwith provided he is not required in connection with any other case.”
The Court also directed that the detention record be returned to the counsel for the respondents.
Advocates Representing the Parties
For the Petitioners: Mr. Usman Gani, Advocate
For the Respondents: Mr. Syed Musaib, Deputy Advocate General
Case Title: Mohd. Iqbal Koka v. UT of J&K and Others
Case Number: HCP No. 66/2024
Bench: Justice Sanjay Dhar
[Read/Download order]
