HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU LPA No. 257/2024 Reserved on : 31.12.2024. Pronounced on :03 .01.2025. Amjad Khan son of Nazir Ahmed resident of Subash Nagar, Udhampur through his wife Pinky. …appellant V/s Mr. Yassin Zarger Advocate 1. UT of Jammu and Kashmir through Commissioner Secretary to Home Department, Civil Secretariat, Jammu 2.Financial Commissioner, Home Department 3. Divisional Commissioner, Jammu 4. Superintendent of Police Udhampur 5. Superintendent of District Jail Udhampur. …..respondents Ms Monika Kohli Sr. AAG Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE JUDGEMENT Sanjeev Kumar, J. 1 This intra-Court appeal is directed against the judgment dated 25.11.2024 passed by the learned Single Judge of this Court ['the Writ Court'] in HCP No. 37/2024 titled 'Amjad Khan vs. vs. UT of Jammu and Kashmir and others’, whereby the Writ Court has declined to set aside the order of detention of the appellant issued by the Divisional Commissioner, Jammu [‘the detaining authority’] vide his No. PITNDPS 19 of 2024 dated 15.02.2024. 2 Before we advert to the grounds of challenge urged by learned counsel appearing for the appellant, it is necessary to notice few relevant facts. 2 On the basis of some material, such as a dossier and other connected documents, including copies of FIRs registered against the appellant, the Divisional Commissioner, Jammu, vide his communication dated 15.02.2024, ordered the detention of the appellant with a view to prevent him from committing any offence under the Prevention of Illicit Traffic. 3 From a reading of the grounds of detention, it transpires that the activities, which the Detaining Authority found to pose a threat to the health and welfare of the people, are such, in respect of which, the Police Station, Udhampur has already registered two FIRs; one in the year 2018 and the other in the year 2023. Both the FIRs have been registered for commission of offences under Sections 8/21/22 of NDPS Act. FIR No. 436/2018 is shown to have been investigated and culminated into presentation of a challan before the competent Court of law, while FIR No. 601/2023 is still under investigation. On the basis of allegations in the FIRs aforesaid, the Detaining Authority has come to the conclusion that the activities of the appellant pose a serious threat to the health and welfare of the people. Consequently, the Detaining Authority recorded its satisfaction that, with a view to prevent the appellant from indulging in activities prejudicial to the health and welfare of the people, it was necessary and in public interest to place the appellant under preventive detention. 4 Feeling aggrieved by his detention, the appellant filed HCP No. 37/2024 before the Writ Court which was contested by the respondents by filing a counter affidavit. 5 The Writ Court, after considering the rival contentions and having gone through the detention record, came to the conclusion that the activities, 3 the appellant had been indulging in, had the potential to disturb public health, safety, and the well-being of society. Accordingly, the Writ Court upheld the order of detention passed by the Detaining Authority and dismissed the writ petition vide its judgment dated 25.11.2024. It is this judgment of the Writ Court that is impugned before us in this appeal. 6 Although, the learned counsel for the appellant has raised several grounds to challenge the impugned judgment of the Writ Court, yet, during the course of arguments, he has laid much emphasis on the contention that the appellant had filed a representation through his wife, Pinky, against the detention order, but the same was not considered by the respondents. However, the Writ Court did not consider this aspect of the matter. 7 Heard learned counsel for the parties and perused the material on record. 8 Indisputably, the appellant, through his wife Pinky, made a representation dated 27.02.2024 against his detention, which was received by the office of Divisional Commissioner, Jammu, on 28.02.2024. The appellant has specifically pleaded in ground (u) of the writ petition and ground (h) of this appeal that he made a representation before the detaining authority, but the same has not been considered. These assertions remain unrebutted, as there is no denial of the same by the respondents in their counter affidavit. 9 From a perusal of the detention record, it is revealed that the respondents have received the representation of the appellant, as is evident from the communication dated 28.02.2024, addressed by the Divisional Commissioner, Jammu to the Principal Secretary to Government, Home Department. Though the record indicates that comments regarding 4 representation of the appellant were sought by the Government, but there is nothing on record to suggest as to what decision has been taken on the said representation, nor decision thereof, if any taken, seems to have been conveyed to the appellant. The non-consideration of the representation indisputably amounts to a violation of the constitutional safeguards provided under Article 22(5) of the Constitution, thereby rendering the detention unsustainable in law. 10 Article 22(5) of the Constitution of India, casts legal obligation on the Government to consider the detenu's representation as early as possible. Implicit in the right of detenu to make representation is right to have the same considered by the authority concerned. 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 breach of constitutional imperative and it would render the continued detention of the detenu as illegal. Everyday 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. In the instant case, we find that representation of the appellant has not been considered even belatedly. 11 The Supreme Court in the case of Rahmatullah vs State of Bihar, AIR 1981 SC 2069 has held that clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. The obligation of the Government to afford to the detenu an opportunity to make 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 5 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. 12 In Pankaj Kumar Chakrabarty and ors vs State of West Bengal, 1970 AIR 97, a Constitution Bench of Supreme Court has already settled the legal position in the following words: "It is true that clause (5) does not in positive language provide as to whom the representation is to be made and by whom, when made, it is to be considered. But the expressions `as soon as may be' and `the earliest opportunity' in that clause clearly indicate that the grounds are to be served and the opportunity to make a representation are provided for to enable the detenu to show that his detention is unwarranted and since no other authority who should consider such representation is mentioned, it can only be the detaining authority to whom it is to be made which has to consider it. Though clause (5) does not in express terms say so, it follows from its provisions that it is the detaining authority which has to give to the detenu the earliest opportunity to make a representation and to consider it when so made whether its order is wrongful or contrary to the law enabling it to detain him. The illustrations given in Abdul Karim vs State of West Bengal, AIR 1969 SC 1028, show that clause (5) of Article 22 not only contains the obligation of the appropriate Government to furnish the grounds and to give the earliest opportunity to make a representation but also by necessary implication the obligation to consider that representation. Such an obligation is evidently provided for to give an opportunity to the detenu to show and a corresponding opportunity to the appropriate Government to consider any objections against the order which the detenu may raise so that no person is, through error or otherwise, wrongly arrested and detained. If it was intended that such a representation need not be considered by the Government where an Advisory Board is constituted and that representation in such cases is to be considered by the Board and not by the appropriate Government, clause (5) would not have directed the detaining authority to afford the earliest opportunity to the detenu. In that case, the words would more appropriately have been that the authority should obtain the opinion of the Board after giving an opportunity to the detenu to make a representation and 6 communicate the same to the Board. But what would happen in cases where the detention is for less than 3 months and there is no necessity of having the opinion of the Board ?. If counsel's contention were right, the representation in such cases would not have to be considered either by the appropriate Government or by the Board and the right of representation and the corresponding obligation of the appropriate Government to give the earliest opportunity to make such representation would be rendered nugatory. In imposing the obligation to afford the opportunity to make a representation, clause (5) does not make any distinction between orders of detention for only 3 months or less and those for a longer duration. The obligation applies to both kinds of orders. The clause does not say that the representation is to be considered by the appropriate Government in the former class of cases and by the Board in the latter class of cases. In our view, it is clear from clauses (4) and (5) of Article 22 that there is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (i) to have his representation irrespective of the length of detention considered by the appropriate Government and (ii) to have once again that representation in the light of the circumstances of the case considered by the Board before it gives its opinion. If, in the light of that representation, the Board finds that there is no sufficient cause for detention, the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion." 13. In view of the above settled proposition of law, we are of the view that the non-consideration of the appellant's representation constitutes a violation of the constitutional rights given under Article 22 of the Constitution. Therefore, on this ground alone, writ petition ought to have been succeeded. Though, this vital plea was raised before the Writ Court, however, the same has 7 not been dealt with by the Writ Court. The Writ Court has, therefore, erred in declining to quash the order of detention of the appellant. 14 For the foregoing reasons, this appeal is allowed, and the impugned judgment passed by the Writ Court is set aside. Consequently, the detention order dated 15.02.2024, passed by the Divisional Commissioner, Jammu, is quashed. The Jail Superintendent concerned is directed to release the appellant from the preventive detention forthwith, provided his detention is not required in connection with any other criminal case pending against him. The detention record be returned to the learned counsel for the respondents. (PUNEET GUPTA) (SANJEEV KUMAR) JUDGE JUDGE Jammu 03 .01.2025 Sanjeev whether order is reportable:Yes/No