“Delay Strikes at the Heart of Procedural Rights”: J&K High Court Quashes PSA Detention Over Failure to Provide Translated Grounds and Act on Representation for Over Three Months
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh at Srinagar quashed the detention of Rouf Ahmad Mir under the Jammu & Kashmir Public Safety Act, observing that the detenue was denied the constitutional right to make an effective representation. The Court recorded that the failure to supply translated grounds of detention and an unexplained delay of over three months in deciding the petitioner’s representation constituted violations of Article 22(5) of the Constitution of India.
The Single Bench, of Justice Sanjay Dhar, held that the absence of a translated version of the grounds of detention rendered the detenue unable to understand the basis of his detention, thereby nullifying the constitutional and statutory safeguards designed to protect personal liberty. The Court further observed that the delay in considering and communicating the result of the petitioner’s representation was impermissible under the law.
The Court stated that procedural compliance in preventive detention cases is not a mere formality, particularly when the liberty of an individual is at stake.
The petitioner, Rouf Ahmad Dar, through Advocate Asif Wani, challenged detention order No. 04/DMA/PSA/DET/2024 dated 28.02.2024 issued by the District Magistrate, Anantnag. The order placed the detenue, Rouf Ahmad Mir, under preventive detention “in order to prevent him from acting in any manner prejudicial to the security of the State/UT.”
It was submitted that the order was passed without application of mind and that the allegations mentioned in the grounds of detention had no nexus with the detenue. The petitioner asserted that the grounds were vague and non-existent, and therefore insufficient for a reasonable person to make an effective representation. It was further contended that the translated version of the grounds of detention was not provided and that the representation against the detention order had not been considered by the authorities.
The respondents, represented by Advocate Syed Musaib, filed a reply affidavit stating that the detenue’s activities were prejudicial to the security of the State. It was contended that all constitutional and statutory safeguards had been complied with and that the detention order, the grounds of detention, and supporting material had been provided to the detenue and explained to him. It was further submitted that the detenue was informed of his right to make a representation to the Government as well as the detaining authority. The respondents relied on the judgment of the Supreme Court in Hardhan Saha v. State of W.B., (1975) 3 SCC 198.
The petitioner’s counsel raised two principal grounds during arguments: first, the non-supply of translated copies of the material forming the basis of detention, and second, the delay in consideration of the representation filed by the petitioner.
The detention record was produced before the Court, including the execution report and inter-departmental correspondence concerning the representation.
Addressing the first issue, the Court recorded that the detenue was a semi-literate person, and the record revealed that translated copies of the grounds of detention had not been provided. The Court stated, “Thus, he would not be in a position to understand the contents of the grounds of detention. The record also suggests that the translated copies of grounds of detention have not been supplied to the detenue. Therefore, right of making an effective representation against the detention order has been rendered nugatory in this case, resulting in infringement of Constitutional right of the petitioner guaranteed under Article 22(5) of the Constitution.”
The Court stated that the supply of grounds of detention is a constitutional safeguard and that unless the detenue is in a position to understand the same, the service of such grounds becomes a formality. Citing Chaju Ram vs. The State of Jammu & Kashmir, AIR 1971 SC 263, and Smt. Raziya Umar Bakshi Vs. Union of India, AIR 1980 SC 1751, the Court recorded that a detenue must be able to comprehend the grounds in order to make an effective representation.
The respondents relied on an execution report stating that the grounds of detention were read over and explained to the detenue by one ASI Ghulam Qadir. However, the Court noted, “It was incumbent on the respondents to place on record a duly sworn affidavit of the said official, but no such affidavit is available in the detention record. To eradicate all the doubts, it was incumbent on the part of the person, who did the exercise of handing over the documents and conveying the contents thereof to the detenue, to file an affidavit in order to attach a semblance of fairness to his actions.” The Court relied on the judgments in State Legal Aid Committee, J&K Vs. State of J&K & others, AIR 2005 SC 1270, Lallubhai Jogibhai Patel vs. Union Of India & Ors., AIR 1981 SC 728, and Mohammad Shaban Chopan Vs. State and another, 2003 (II) S.L.J 455.
On the second issue, the Court observed that the representation submitted by the petitioner on 07.05.2024 was received by the respondents and ultimately rejected by the Government on 28.08.2024. The Court noted that the representation was received in the third week of May 2024, as indicated in a communication dated 20.05.2024 from the District Magistrate, Anantnag, to the Principal Secretary, Home Department.
The Court recorded, “The question that arises for determination is, as to whether consideration of representation after a period of more than three months from the date of receipt of the same satisfies the requirement of law.”
In answering this question, the Court referred to Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others, (2021) 20 SCC 98. Quoting paragraph 47 of the judgment, the Court recorded: “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.”
The Court further stated, “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 of the Jammu & Kashmir Public Safety Act.”
It was noted that the rejection of the representation was recorded only in an inter-departmental communication dated 28.08.2024 and that there was no evidence to show that the decision had been conveyed to the detenue. The Court stated, “It is not forthcoming from the record produced by the respondents as to whether the result of the representation has been conveyed to the petitioner.” Citing the same judgment, the Court recorded that “failure of the government to communicate rejection of detenue’s representation in a time bound manner is sufficient to vitiate the detention order.”
The Court quashed the detention order, recording: “Viewed thus, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from the 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 counsel for the respondents.
Advocates Representing the Parties
For the Petitioner: Mr. Asif Wani, Advocate
For the Respondents: Mr. Syed Musaib, Advocate
Case Title: Rouf Ahmad Dar v. UT of J&K & Ors.
Case Number: HCP No. 183/2024
Bench: Justice Sanjay Dhar
[Read/Download order]
