Non-Consideration or an Unreasonably Belated Consideration of the representation tantamount to non-compliance of Article 22(5) of the Constitution: High Court of J&K&L

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  • Post published:March 9, 2022
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The Bench of Justice Sanjay Dhar has observed that non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Article 22(5) of the Constitution.

Failure of the respondents to place the representation submitted by the detenue before the Advisory Board and its consequent non-consideration indisputably amounts to violation of the provisions of Article 22(5) of the Constitution, the bench observed.

Facts:

In the instant case, the impugned detention order issued by District Magistrate, Anantnag was challenged on the ground that the Detaining Authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are vague, non-existent on which no prudent man can make a representation against such allegations.

The petitioner contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case.

The petitioner urged non-application of mind on the part of detaining authority while passing the impugned detention order as the detenue was already admitted to bail in the FIR.

The petitioner further submitted that the representation was submitted against the detention by the detenue through his cousin before the respondents yet the same was not considered rendering the detention order unsustainable in law.

Observations of the Court:

The Court after perusing the record noted that the petitioner has specifically pleaded in ground (ix) of his petition that he made a representation before the Detaining Authority on 03.11.2021 through his cousin but the same has not been placed before the Advisory Board, which as per the record of detention, considered the matter on 15.11.2021.

Also Read:  Detenue has a constitutional right to be informed of the grounds of his detention and to make representation against the order of detention: J&K High Court

The Court observed that the failure of the respondents to place the representation submitted by the detenue before the Advisory Board and its consequent non-consideration indisputably amounts to violation of the provisions of Article 22(5) of the Constitution.

The Court referred to the Judgment of the Apex Court in case of Rahmatullah Vs. State of Bihar and Ors., 1979(4) SCC 559 wherein in para 4, the Supreme Court observed as under:

“4. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with. Sub-Article (5) of Article 22 reads:

When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

This Sub-Article provides, inter alia, that the detaining authority shall as soon as may communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution.”

Rahmatullah Vs. State of Bihar and Ors., 1979(4) SCC 559

The Court after referring to the judgment (supra) observed:

Also Read:  Detenue has a constitutional right to be informed of the grounds of his detention and to make representation against the order of detention: J&K High Court

9. From the aforesaid legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law.

In this backdrop, the Court allowed the petition and quashed the impugned order of detention and directed that the detenue to be released from the preventive custody forthwith.

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Case Details:
Kaisar Ahmad Beigh versus Union Territory of J&K & Anr. | WP(Crl) No.251/2021
Coram: Justice Sanjay Dhar
Mr. Wajid Mohammad Haseeb, Advocate for the petitioner
Mr. M. A. Chashoo, AAG for the respondents
Date of Judgment: 09-03-2022