10 March 2023 6:00 AM GMT
Quashing a Preventive detention order under J&K Public Safety Act, the Jammu and Kashmir and Ladakh High Court recently observed that the words "As soon as may be‟, in Article 22 (5) of the Constitution of India, clearly shows the concern of the makers of the Constitution that the representation, made on behalf of detenu, should be considered and disposed of with a sense of urgency...
Quashing a Preventive detention order under J&K Public Safety Act, the Jammu and Kashmir and Ladakh High Court recently observed that the words "As soon as may be‟, in Article 22 (5) of the Constitution of India, clearly shows the concern of the makers of the Constitution that the representation, made on behalf of detenu, should be considered and disposed of with a sense of urgency and without any avoidable delay.
The observations were made by Justice Vinod Chatterji Koul while disposing of a habeas corpus plea in terms of which the detenu had assailed his order of detention passed by District Magistrate Anantnag, terming his detention under preventive detention necessary to prevent him from acting in any manner prejudicial to security of the State.
The petitioner while throwing a challenge to the detention order contended that a representation was made by father of detenu to respondents for releasing detenu, yet the same was neither considered and decided by respondents nor detenu was produced before Advisory Board for providing him an opportunity of being heard so that he could explain to the members of the Board that detenu is innocent and his order of detention deserves to be revoked and he be set at liberty.
While dealing with the matter the court noted that it is evident from the pleadings of the respondents as well as detention record that the representation submitted on behalf of the detenu has not been considered by the respondents so far.
Finding substance in the argument of the counsel for the petitioner that his representation qua his detention was not considered the court said that,
"Admittedly, a representation, placed on file, has been filed against detention on 26.04.2022 before the detaining authority and the same has not been considered till date inasmuch as there is no mention in the Reply as to the said representation having been made by the father of the detenu" adding,Thus, there is substance in the submission of learned counsel for petitioner that non-consideration of representation of detenu vitiates impugned order of detention".
In order to buttress the said position of law the bench placed reliance on K. M. Abdulla Kunhi v. Unio of India (1991) wherein SC while commenting on the issue observed,
"There should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of the representation would be breach of the constitutional imperative and it would render the continued detention impermissible and illegal.”
In view of the same the court allowed the petition and ordered the immediate release of the detenu provided he is not required in any other case.
Case Title: Arif Ahmad Khan Vs UT of J&K.
Citation: 2023 LiveLaw (JKL) 47
Coram: Justice Vinod Chatterji Koul
Counsel For Petitioner: Mr Mir Suhail
Counsel For Respondent: Mr Faheem Shah GA
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