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Judgment
1) In terms of detention order No.01-DMK/PSA/2018 dated 10.04.2018, passed by District Magistrate, Kupwara-respondent No.2 herein, Aafaq Ahmad Bhat (hereinafter referred to as the detenue), has been taken into preventive custody and lodged in Central Jail, Kotbhulwal. By the instant petition, quashing of the said order is sought.
2) The petitioner’s case, as set out in the petition, is that the detenue, firstly, without any justification and cause, was implicated in a criminal case, where after detention order impugned was slapped upon him. The order is bad, illegal and unconstitutional. The respondents are stated to have ignored to provide material relied upon by the detaining authority while passing the impugned order of detention and thus deprived the detenue of his guaranteed Constitutional rights. Grounds of detention are stated to be vague and unfounded.
3) The respondents, in their counter affidavit, have disputed the averments made in the petition and insisted that the activities of detenue are highly prejudicial to the maintenance of public order. It is pleaded that the detention order and grounds of detention were handed over to the detenue and same were read over and explained to him.
4) Learned counsel for the petitioner highlighted number of grounds for quashing impugned order. However, during the course of arguments, the only ground which prevailed for consideration is that the detenue has been informed to make representation to the government but has not been informed that he can make a representation before the detaining authority, which is an infringement of a valuable right.
5) Perusal of the records reveal that vide communication dated 10.04.2018, issued by District Magistrate, Kupwara, detenue has been informed to make a presentation to the Government, so clearly he has not been asked to make a representation before the District Magistrate (Detaining Authority). The position has already settled i.e. when there is such a breach of right, the order of detention becomes unsustainable.
6) In the judgment rendered by the Hon’ble Apex Court in “State of Maharashtra and others v. Santosh Shankar Acharya” (AIR 2000 SC 2504), it has been held that “detenue will have a right to make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government and consequently noncommunication of the fact to the detenue that he has a right to make representation to the Detaining Authority, would constitute an infraction of the valuable Constitutional right guaranteed to the detenue under Article 22(5) of the Constitution and such failure would make the order of detention invalid.”
7) Taking conspectus of the aforesaid discussion, petition is allowed, order No.01-DMK/PSA/2018 dated 10.04.2018, is quashed. The detenue shall be released from the preventive custody forthwith if not required in connection with any other case.
8) Detention records, as produced, be returned to the learned counsel for the respondents.