Authorities Obligated To Promptly Consider Detenu's Right To Representation Under Article 22 Of Indian Constitution: J&K High Court

In allowing a habeas corpus plea Justice Rahul Bharti observed,

“Right to representation is a Constitution of India guaranteed and granted right under article 22 to a detenu and its consideration by the Govt. and/or the detention order making authority is also a corresponding constitutional obligation which cannot admit of being put to waste or neglect by the Govt. and/ or the detention order making authority except at the cost of leaving a given preventive detention of such a detenu an illegality”.

Emphasising the self-awareness on the part of detaining authority with regard to its duty towards a representation filed by the detenu against his detention order the court opined,

“It is not for a constitutional court to remind the Govt. and/or the preventive detention order making authority that a representation made by a detenu against his/her preventive detention admits of no avoidance or escape of its consideration at their respective end, whereas it is for the Govt. and/or the preventive detention order making authority to self-know and remind at its respective end that a representation, if any, made by a detenu against his/her preventive detention is a matter of compulsive consideration to be done by the Govt., and/or the preventive detention authority and, accordingly, duly inform a detenu about the outcome of consideration of his/her representation”.

Background:

The case revolved around Manzoor Ahmad Yatoo, a 31-year-old resident of Baramullawho was detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT NDPS). The preventive detention order, issued by the Divisional Commissioner of Kashmir on September 8, 2023, was based on a dossier submitted by the Senior Superintendent of Police (SSP), Baramulla, which accused Yatoo of involvement in drug trafficking.

Yatoo, through his father Mohd. Sultan Yatoo, challenged this detention, arguing that the process leading to his detention was flawed and violated his constitutional rights.

The petitioner, represented by Advocate Ms. Sheeba Khan, contended that the dossier submitted by the SSP Baramulla failed to disclose that Yatoo had been granted interim bail on August 19, 2023, in connection with an FIR. This bail was granted just three days after the dossier's submission and the omission of this critical information had misled the Divisional Commissioner, who issued the detention order without being fully informed, the petitioner submitted.

The respondents, represented by Government Advocate Mr. Sajad Ashraf, defended the detention, arguing that Yatoo posed a significant threat to public health and safety due to his alleged involvement in drug trafficking.

Court's Observations:

After giving thoughtful consideration to the rival contentions Justice Bharti noted that the SSP Baramulla's failure to mention Yatoo's interim bail application and subsequent grant of bail in the dossier had vitiated the process.

The Court found this non-disclosure to be a significant failing and pointed out that the detaining authority, the Divisional Commissioner, Kashmir, and the Jammu and Kashmir government were kept "misinformed or half-informed" due to the omission. This, the court stated, rendered the entire detention process illegal.

Furthermore, the Court noted that Yatoo had submitted a representation against his detention on October 12th, 2023. However, there was no record of the authorities considering or responding to the representation by the time the counter-affidavit was filed in December 2023.

Justice Bharti emphasized that the right to representation is a constitutional obligation that cannot be ignored by the government or the detaining authority. The Court asserted that a detenu's representation deserves "compulsive consideration" and the authorities are duty-bound to inform the detenu about the outcome.

Considering these lapses, the Court ruled in favor of Yatoo. The preventive detention order and its subsequent confirmation by the government were quashed, and Yatoo's release was ordered.

Case Title: Manzoor Ahmad Yatoo Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 178

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