Seema @ Khairi vs Union Territory Of Jammu And Kashmir And Others

Sanjay Dhar, J

In the present petition, the petitioner has challenged order of detention bearing No. PITNDPS 43 of 2023 dated 27.09.2023 issued by respondent No. 3-Divisional Commissioner, Jammu (hereinafter to be referred as the Detaining Authority), whereby the petitioner, Seema alias Khairi W/O Pal Singh R/O Rajeev Nagar, Narwal, District Jammu has been taken into preventive custody with a view to prevent her from committing any of the acts within the meaning of illicit traffic as defined in Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the PITNDPS Act)

The petitioner has challenged the impugned order of detention on the grounds that the respondents, while passing the impugned order of detention, have not followed the constitutional and statutory safeguards as guaranteed under Article 22(5) of the Constitution of India. According to the petitioner, the copies of the FIRs and statements of the witnesses along with other connected material have not been supplied to her, which has deprived her from making an effective representation against the impugned order of detention. It has been further contended that though representation on behalf of the petitioner was submitted, but the same has not been considered by the respondents, thereby making the impugned order of detention unsustainable in law. It has also been submitted that the detenue is an illiterate person as such, the respondents were under a constitutional and legal duty to provide to her translated version of the grounds of detention and other material and to explain the same to her in her native language. It has been contended that no affidavit in this regard has been filed by the Executing Authority. It has been further contended that while passing the impugned order of detention, the Detaining Authority has not spelt out any compelling reasons for doing so.

The respondents have contested the writ petition by filing counter affidavit thereto. In the counter affidavit, it has been submitted that the petitioner has been involved in a number of cases relating to offences under the NDPS Act and after getting bail, she was again indulging in similar kinds of activities which compelled the respondents to pass the impugned order of detention. It has been further submitted that the Executing Officer has been provided whole of the material relied upon by the Detaining Authority, while passing the impugned order of detention and the same has been explained to her in Hindi as well as in Dogri languages. It has been further submitted that the representation made by the petitioner was forwarded to respondent No. 2 for further appropriate action. In order to lend support of their contentions, the respondents have produced the detention record.

I have heard learned counsel for the parties and perused the material on record including the record of detention produced by learned counsel for the respondents.

The primary ground that has been urged by learned counsel for the petitioner for assailing the impugned order of detention is that the representation made by the petitioner against the impugned order of detention has not been considered by the respondents. The petitioner has placed on record a copy of the representation along with present writ petition. The detention record shows that the Detaining Authority has, under the cover of its letter dated 10.11.2023, forwarded the representation to the petitioner to the Home Department, however, there is nothing on record to indicate the fate of the representation of the petitioner. In the counter affidavit filed by the respondents, the receipt of representation is admitted but it is not indicated therein as to what has happened to the said representation. Thus, the contention of the petitioner that her representation has not been considered by the respondents, appears to be well founded.

Article 22(5) of the Constitution of India casts a legal obligation on the Government to consider the representation of the detenue as early as possible. There should be no slackness, indifference and callous attitude in consideration of the representation of a person, who is under detention. Any unexplained delay in disposal of a representation would be a breach of the constitutional imperative and it would render the continued detention of the detenue as impermissible and illegal. Everyday’s delay in dealing with the representation has to be explained and the explanation offered must indicate that there is no slackness or indifference.

In Tara Chand v State of Rajasthan and others, (1980) 2 SCC 321, the Supreme Court has held that any inordinate or unexplained delay on the part of the Government in considering the representation renders the very detention illegal. A similar view has been taken by the Supreme Court in the case of Kundanbhai Dulabhai Shaikh v District Magistrate, Ahmedabad and others, 1996 CrLJ 1981.

In the instant case, the respondents have admitted having received the representation of the petitioner but there is nothing on record to show that the same has been considered by them till date. Therefore, non-consideration of the petitioner’s representation constitutes violation of his constitutional right guaranteed under Article 22(5) of the Constitution of India and it also amounts to failure of the respondents to discharge their statutory functions. Thus, on this ground alone, the impugned order of detention passed against the detenue(petitioner) is liable to be quashed.

For the foregoing reasons, the impugned order of detention deserves to be quashed and it is accordingly, quashed. The petitioner is directed to be released from preventive custody forthwith provided he is not required in connection with any other case.

The record, as produced, be returned to the learned counsel for the respondents.