Srinagar: “It is the failure of the detaining authority not considering representation of a detenue which indisputably amounts to violation of the provisions of Article 22(5) of the Constitution,” the J&K High Court said on Wednesday while quashing the detention order under PSA (Public Safety Act) of a Pulwama resident.
Justice Javed Iqbal while hearing the plea of Mohammad Rafiq Mir, who was slapped with Public Safety Act on 13 July, 2020, pointed out that an order for detention can be validly passed against a person in custody only if the grounds of detention show that “the detaining authority was aware of the fact that the detenue is already in detention and there were compelling reasons justifying such detention (under PSA) despite the fact that the detenue is already in detention.”
The court recorded that the expression “compelling reasons” is the cogent material that has to be produced by the detaining authority in order to detain a person.
While giving reference to Supreme Court directives in case titled Surya Prakash Vs UP and Others, Justice Iqbal remarked that the detaining authority to detain a person who is already in custody must provide compelling reasons to do so.
The judge said that in the instant case, “Perusal of the grounds of detention/order of detention would manifestly reveal that the detaining authority has not drawn any satisfaction as per the mandate laid down by the Apex Court in the judgment “Surya Prakash Sharma” supra, while passing the detention order against the detenue, so much so, the respondents have also failed to express any such compelling reasons even in their reply affidavit as well.”
“The detention order, thus in law, does not sustain on this count alone,” the court held.
The court also put on record the second ground of challenge urged by Advocate Wajid Haseeb, representing the detenue, wherein it was submitted that a representation has been made on behalf of the detenue by his father and is seemingly acknowledged to have been received by the office of District Magistrate, Pulwama, on 18 July, 2020.
“The respondents have not considered such representation as reflected from the affidavit they filed,” the court noted. “The failure of the respondents to consider the representation submitted by the detenue indisputably amounts to violation of the provisions of Article 22(5) of the Constitution.”
Justice Iqbal while giving reference to other cases titled as Rahmatullah Vs. State of Bihar and Others said, “The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22(5) must be complied with.”
It was held by the court that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
“The non-consideration of the representation tantamount to non-compliance of Sub-Article (5) of Article 22 of the Constitution,” the court said.
“Viewed thus, in the context what has been observed, analyzed and considered in the preceding pars, instant petition is allowed and consequent to which the order of detention bearing No. 16/DMP/PSA/20 dated 13 July, 2020 is quashed, with the direction to the respondents to release the detenue forthwith from preventive custody, unless the detenue is required in any other case,” the court said.

NUSRAT SIDIQ