Ajaz Ahmed Peer vs Government Of J&K And Others

Puneet Gupta, J

The petitioner-Aiaz Ahmad Peer through his wife has challenged detention order bearing No.77/DMB/PSA/2022 dated 15.09.2022, passed under the Public Safety Act, 1978 by the respondent No.2-District Magistrate, Baramulla on the ground that the requisite material has not been provided to the petitioner while executing the warrant of detention. The subjective satisfaction has not been derived by the detaining authority of its own and has passed the detention order only on the basis of dossier supplied by the concerned SSP and further there is no proximate and live link between the detenue and alleged subversive activities attributed to the petitioner. The representation filed by the petitioner before the authorities through his wife has not been considered by the respondents. The petitioner prays for quashment of the impugned detention order.

2.The counter to the petition has been filed by the respondents wherein the respondents have justified the detention order on the ground that the same has been passed as per the provisions of the Act and that all the formalities required to stand observed while passing the detention order. The government confirmed the detention order vide dated 31.10.2022.

Heard learned counsel for the petitioner and learned Government Advocate appearing for the respondents.

Photocopy of the record is also filed by the counsel for the respondents.

The learned counsels appearing for the parties have argued the matter as per the contents of their respective pleadings.

The purpose of the detention order is defined and elaborated in case titled Haradhan Shah Vs. State of West Bengal (1975) 3 SCC 198. It has been held in the said authority that the purpose of the preventive detention is not to punish the detenue but to prevent him from doing certain actions which are anticipated by the detaining authority. The prosecution in the Court of law and the detention order passed under the Act have different purpose. Whereas the one is punitive action the other is preventive one. It is also well-established principle of law that the liberty of the individual has to give way when conflicted with the interest and security of the nation or public order.

One of the grounds agitated by the counsel for the petitioner is that the respondents failed to fulfil the constitutional obligation while proceedings in the matter and that is that the representation filed by the petitioner through his wife against the detention order was not taken care of by the respondents. In other words, the respondents did not respond to the same as it failed to pass any order on the representation made by the petitioner.

The perusal of the reply filed by the respondents on the contention raised by the petitioner that he filed representation through his wife but was not considered by the respondents remains un-rebutted. There is no mention in the reply to the contention raised by the petitioner that the representation duly made through his wife was not considered and decided by the authorities. The petitioner has annexed copies of the representation made to the authorities including respondent No.2-District Magistrate, Baramulla. The representation has been received by the office of Deputy Commissioner on 24.09.2022. The receipt to that effect is annexed with the petition. There can be no dispute on this factual aspect of the representation having been made by the petitioner to the said respondent.

The representation of the petitioner was bound to be considered by the respondents under the provisions of the Public Safety Act, in which the detention order came to be passed against the petitioner cannot be disputed. What prevented the respondents from considering the representation and pass the appropriate order on the representation is not made known to the Court. Of course, it is the discretion of the authorities to accept or reject the representation but cannot ignore the same by not taking any action on the representation. It is unfortunate that the representation filed by the petitioner remain unattended and unanswered by the authorities though made immediately after the passing of the detention order. No plausible reason is forthcoming from the record for non consideration of the representation duly presented by the petitioner before the respondents.

The provisions of the Act having been flagrantly violated and constitutional guarantee provided to the petitioner by the Constitution of India for having his representation considered by the authorities but not disposed of, the Court is left with no other option but to quash the impugned detention order. As the detention order stands knocked out on the basic flaw that has crept in the proceedings the court need not delve on the other grounds raised by the petitioner for holding the detention order bad.

Accordingly, the detention order impugned in the present petition is quashed. The petitioner is directed to be released from the custody provided if he is not required in any other case.