Non-Consideration Of Detenu's Representation Against Preventive Detention Order Violates Right Under Article 22 Of Constitution: J&K&L High Court

Justice Sanjeev Kumar observed:

"I am of the considered view that the impugned order of detention does not sustain in the eye of law, in that, the representation made on his behalf by his mother has not been considered by the respondents. Right of the detenue to make a representation and to have the same considered by the competent authority is a fundamental right guaranteed to a person under detention under Article 22 of the Constitution and the infraction of such a right renders the detention illegal and unconstitutional."

The Court was considering a petition filed by one Aijaz Ahmad Sofi through his mother seeking quashing of his detention order issued by District Magistrate, Srinagar.

The ground for challenge was that the representation submitted by the detenue against his detention was not considered by the detaining authority.

As per detenue, the detaining authority did not show its awareness with regard to the fact that he was granted bail in one of the FIRs that formed part of the grounds for his detention, speaking volumes about the non-application of mind on the part of the detaining authority.

The Respondent stated that based on detenues activities, the detaining authority was of the view that detenue remaining outside would have been detrimental to the security of state. However, there was no mention of the acceptance /rejection of representation made by the detenue through his mother.

"The detenue has not only specifically averred but has also placed on record copy of the representation submitted by the detenue through his mother. Although the respondents are silent about the representation made by the detenue through his mother, but the detenue has placed on record the postal receipt testifying the submission of the representation by him through his mother. There is no denial or rebuttal of the same by the respondents in their reply affidavit. In these circumstances, this Court has no option but to presume that the representation has been made by the detenue through his mother to the competent authority but the same has not been adverted to and considered" Court said

The Court observed that the order of detention impugned in this petition cannot survive on the touchstone of settled legal position and the express right guaranteed to the detenue under Article 22 of the Constitution.

Accordingly, the petition was allowed.