Srinagar, Dec 13: The High Court of J&K and Ladakh on Tuesday ordered the immediate release of a man from Central Kashmir’s Budgam district from preventive custody while quashing his detention under the Public Safety Act(PSA).
A bench of Justice Moksha Khajuria Kazmi directed the Jail Superintendent concerned to release Abid Ahmad Dar of Dalipora Chadoora, Budgam from preventive custody forthwith if he was not required in connection with any other case. Dar was detained under PSA in terms of a detention order passed by District Magistrate Budgam on June 27, 2022.
The petitioner had challenged his detention order mainly on the ground of non-consideration of the representations filed by him against the detention order.
The Court noted that it was quite evident that representations had been made by the detenue against his detention which were received by the authorities but had not been considered as shown by the postal receipts placed on record.
“Article 22(5) of the Constitution of India casts a legal obligation on the Government to consider the detenu’s representation as early as possible,” the Court said.
The Court observed that there should be no slackness, indifference, and callous attitude in consideration of the representation of the persons who are detained. “Any unexplained delay would be a breach of constitutional imperative and it would render the continued detention of the detenu as illegal,” it said, adding “each day’s delay in dealing with the representation has to be explained and the explanation offered must be reasonably indicating that there was no slackness or indifference.”
Citing a Supreme Court case, the bench said that the apex court in its judgment “has held that clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation.”
The Court pointed out that the obligation of the Government to afford the detenu an opportunity to make a representation is distinct from the Government’s obligation to refer the case of the detenu along with representation to the Advisory Board to enable it to form its opinion and send a report to the Government. “Therefore, it is implicit in clauses (4) and (5) of Article 22 that the Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board”.
Quashing the detention order, the Court observed that “non-consideration of the detenu’s representations constitutes a violation of the constitutional right guaranteed under Article 22 of the Constitution and also exhibits the failure of the Government to discharge its statutory obligation/function”.
“Therefore, for this reason alone, writ petition must sucseed”, it added.