Serial No.11 Regular List HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR HCP No.219/2018 Date of decision:28.11.2018 [PRECEDENT] and anr. Coram: Hon'ble Mr. Justice [ENTITY], Judge. Appearance: For the Petitioner(s): Mr. [ENTITY], Adv. For the Respondent(s): Mr. [ENTITY], AAG.
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1. Challenge in this petition is to the order No.14/DMP/PSA/18 dated 31.07.2018, passed by District Magistrate, Pulwama-respondent No.2 herein, whereby [ENTITY] referred to as the detenue), has been taken into preventive custody and lodged in District Jail, Kathua.
2. Host of grounds have been projected while seeking quashment of impugned order but the star ground is that the detaining authority-respondent No.2, did not inform the detenue that, independent of his right to file representation against his detention to the Government, he has also a right to submit representation to the detaining authority, thus violated constitutional and statutory rights of the detenue guaranteed under [SECTION] of the [ACT].
3. It is expected from the detaining authority while serving an order of detention, as a rule, to inform the detenue that he has a right to make a representation against the order of detention to the detaining authority itself. The law insists upon the literal performance of a procedural requirement. The need for observance of procedural safeguards, particularly in cases of deprivation of life and liberty, is of prima importance. It is, therefore, imperative that the detaining authority must apprise a detenue of his constitutional right under [SECTION] to make a representation against the order of detention.
4. Perusal of the material available on file, reveals that vide communication dated 31.07.2018, issued by District Magistrate, Pulwama, detenue has been informed to make a presentation to the Government, so clearly he has not been asked to make a representation before the District Magistrate (Detaining Authority). The position has already been settled i.e. when there is such a breach of right, the order of detention becomes unsustainable. The said issue has been considered by a Division Bench of this Court in "[ENTITY] v. State of J&K & ors" (LPAHC No.43/2017) while relying on the decision of the Hon'ble Supreme Court in the case of "[PRECEDENT]. The said question as noted in the Division Bench decision in [ENTITY]'s case (supra) was answered in affirmative which meant that unless and until the detenue was communicated that he had a right to make a representation to the detaining authority, there would be an infraction of the [ACT]al right under [SECTION] of the [ACT] and that the detention order would be vitiated. The Division Bench in [ENTITY]'s case observed as under:
"14.The Supreme Court, after considering the [ACT]al Bench decision in [PRECEDENT], came to the conclusion that until the detention order is approved by the State Government, the Detaining Authority can entertain the representation from the detenu in exercise of powers of the [ACT] and annul revoke or modify the order, as is provided under [SECTION] of the [ACT]. The Supreme Court held that, this being the position, non-communication of the fact to the detenu that he could make a representation to the Detaining Authority so long as the order of detention has not been approved by the State Government in a case where the order of detention is issued by an officer other than the State Government under [SECTION] of the [ACT] would constitute an infraction of a valuable right of the detenu under [SECTION] of the [ACT] and that the ratio of the [ACT] Bench decision in case of [PRECEDENT]'s case (supra) would apply notwithstanding the fact that in [PRECEDENT]'s case (supra) the Court was dealing with an order of detention issued under the provisions of [ACT]. Ultimately the Supreme Court held as under:-
"This being the position, it goes without saying that even under the [ACT] a detenu will have a right to make a representation to the detaining authority so long as the order of detention has not been approved by the State Government and consequently non-communication of the fact to the detenu that he has a right to make representation to the detaining authority would constitute an infraction of the valuable constitutional right guaranteed to the detenu under [SECTION] of the [ACT] and such failure would make the order of detention invalid. We, therefore, see no infirmity with the impugned judgment of the Full Bench of the Bombay High Court to be interfered with by this Court. These appeals accordingly fail and stand dismissed."
15. From a reading of the said decision, it is abundantly clear that non- communication of the fact that the detenu can make a representation to the Detaining Authority, till the detention order is not approved by the Government, would constitute an infraction of a valuable [ACT]al right guaranteed under [SECTION] of the [ACT] as also of the right under [SECTION] of the [ACT]. Failure of such non-communication would invalidate the order of detention.
16.The plea of the learned counsel for the respondents, that the detenu could make a representation to the State Government and that such an opportunity had been provided, would be of no consequence for the simple reason that the Government's approval of the detention order came later i.e., on 28.12.2016 whereas, the detention order was executed upon the detenu on 24.12.2016 and between that date and 28.12.2016 he had a right to make a representation to the Detaining Authority i.e., the District Magistrate, Baramulla, to revoke the detention order. That opportunity not having been given, vitiated the detention order. In other words, the detention order stood vitiated and invalidated on 22.12.2016 itself.
17.In view of the foregoing, we need not to consider any of the other pleas sought to be raised by the learned counsel for the appellant, inasmuch as the detention order has been invalidated because of non- communication of the fact that the detenu could make a representation to the Detaining Authority. The detention order having become invalid, the detenu is liable to be released forthwith insofar as this detention order is concerned.
5. In the present case, there has been failure to communicate to the detenue that he could make a representation to the detaining authority. On account of such lapse on the part of detaining authority, the detention order is vitiated.
6. Preventive laws have the effect of depriving a person of his liberty which is precious, however, deprivation thereof at times becomes indispensable. For justifying such deprivation, the safeguards as are provided by law are also required to be respected. A person who dares to threaten maintenance of public order has to be dealt with iron hand but the [ACT]al safeguards as are available are also to be followed. The [SECTION] of the [ACT] has protected the life and personal liberty of people by providing that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The word established is used in [SECTION] in order to denote and ensure that the procedure prescribed by law must be defined with certainty in order that those who are deprived of their fundamental right to life or liberty must know the precise extent of such deprivation. If a person is to be deprived of his life or liberty, the authority concerned is under a constitutional mandate to follow the procedure established by law, the procedure prescribed for depriving a person of his life or liberty has to be reasonable, fair and just. The protection contained in the article does not extend to only citizens but to all persons. The law providing for preventive detention has to be strictly construed keeping in view the delicate balance between social security and citizen freedom. Thus if the preventive detention has not been ordered in strict conformity with law authorizing detention, the detenue is entitled to be released.
7. Viewed thus, the petition is allowed and order No.14/DMP/PSA/18 dated 31.07.2018, is quashed. Detenue is directed to be released from the preventive detention forthwith provided he is not required in connection with any other case(s).
8. Detention record, as produced, be returned to the learned counsel for the respondents.
([ENTITY]) Judge [PRECEDENT] 28.11.2018 "[ENTITY], PS"