District Magistrate Who Is Empowered To Issue Detention Order Can Also Revoke It Before Govt Approval: J&K High Court

In a Judgment passed by Justice Sanjay Dhar the court observed,

“..An authority which is vested with jurisdiction to make an order is empowered to add to, amend, vary or rescind such an order. Therefore, the District Magistrate, who is empowered to make the order of detention, is also empowered to revoke it till such time it is not approved by the Government”.

Bashir Ahmed Naik was taken into preventive custody by the District Magistrate of Ramban under the PSA for allegedly being involved in anti-national activities. Naik challenged the detention order arguing several grounds, including not being informed of his right to make a representation against the order before the District Magistrate who passed it.

Naik's lawyer argued that he was not informed about his right to make a representation to the District Magistrate who passed the detention order. He also claimed that the detention order was based on mere suspicion and the grounds for detention were not provided in a language he understood.

The Jammu and Kashmir government defended the detention order, stating that Naik was involved in anti-national activities and had links with terrorists. They argued that all legal procedures were followed while passing the order.

Justice Dhar observed that while the petitioner was informed about his right to make a representation to the government, he was not informed about his right to do so before the District Magistrate who passed the order. This right, the court said, is crucial and failing to inform the detainee violates his rights under Article 22(5) of the Constitution and Section 13 of the J&K Public Safety Act.

Justice Dhar further referred to Section 21 of the General Clauses Act, 1897, and remarked,

“In terms of Section 21 of the General Clauses Act, 1897, power to make an order includes power to add to, amend, vary or rescind, notifications, orders, rules or bye laws. Thus, an authority which is vested with jurisdiction to make an order is empowered to add to, amend, vary or rescind such an order. Therefore, the District Magistrate, who is empowered to make the order of detention, is also empowered to revoke it till such time it is not approved by the Government”.

While the District Magistrate informed the petitioner of the right to appeal to the government, the court found this inadequate. The crucial point, as per the bench was the failure to inform Naik about his right to appeal directly to the District Magistrate who passed the detention order in the first place. This omission, the court ruled, amounted to a serious deprivation of a fundamental right.

Based on the above observations, the High Court quashed the detention order passed by the District Magistrate and ordered the release of Bashir Ahmed Naik.

Case Title: Bashir Ahmed Naik Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 80

Mr. N. D. Qazi, Advocate represented the detenue, the UT was represented by Mr. Eishaan Dadhichi, GA.

Click Here To Read/Download Judgment