Jammu & Kashmir High Court Quashes Preventive Detention Order: “Delay in Considering Representation and Failure to Communicate Rejection Violates Valuable Constitutional Rights”

Court’s Decision

The High Court of Jammu & Kashmir and Ladakh struck down a preventive detention order issued under the Jammu & Kashmir Public Safety Act, 1978. The court held that the delay of over four months in considering the petitioner’s representation and the failure to inform him of its rejection violated his statutory and constitutional rights. Consequently, the detention order was declared illegal.

Facts

The petitioner was detained by an order issued on March 11, 2024, under the Jammu & Kashmir Public Safety Act. The detention was based on the petitioner’s alleged involvement in multiple criminal activities, including several FIRs:

1. FIR No. 36/2019: Under Sections 341, 323, and 147 of the IPC, where the petitioner had already been acquitted.
2. FIR No. 29/2023: Under Sections 341, 323, 427, 506, and 147 of the IPC.
3. FIR No. 12/2024: Under Sections 382, 323, 427, 147, 504, and 506 of the IPC.

The petitioner challenged the detention order, claiming:

1. The detaining authority had not considered his acquittal in one of the FIRs.
2. The detention was based on a mechanical reproduction of police records without independent application of mind.
3. His representation was neither expeditiously considered nor communicated to him.

Issues

1. Non-application of Mind: Whether the detaining authority failed to consider the petitioner’s acquittal in one of the FIRs while issuing the detention order.
2. Delay in Representation: Whether the respondents’ delay in considering the petitioner’s representation and failure to communicate the rejection violated procedural and constitutional safeguards.

Petitioner’s Arguments

The petitioner advanced the following arguments:

1. Lack of Application of Mind:
   • The grounds of detention referred to FIR No. 36/2019, where the petitioner had already been acquitted.
   • The detaining authority failed to consider this fact, which demonstrated negligence or mechanical decision-making.
2. Mechanical Reproduction of Police Records:
   • The grounds of detention mirrored the police dossier, showing that the authority had not exercised independent judgment.
3. Delay in Representation:
   • The petitioner submitted a representation on March 20, 2024, but it was only considered and rejected on August 7, 2024, more than four months later.
   • Such delay undermines the statutory requirement of expeditious consideration.
4. Failure to Communicate Rejection:
   • The rejection of the representation was not communicated to the petitioner, further violating his procedural rights.

Respondent’s Arguments

The government justified the detention as follows:

1. Threat to Public Order:
   • The petitioner’s repeated involvement in criminal activities posed a serious threat to public safety and order.
   • Preventive detention was necessary to safeguard public life and liberty.
2. Statutory Compliance:
   • The detention grounds were provided to the petitioner in languages he understood (Hindi and Dogri).
   • All procedural safeguards were adhered to.
3. Material Evidence:
   • The detaining authority had sufficient material to conclude that the petitioner’s activities were detrimental to public order.

Analysis of the Law

1. Section 13 of the Jammu & Kashmir Public Safety Act:
   • This section requires authorities to promptly communicate the grounds of detention and ensure that representations are considered expeditiously.
2. Constitutional Safeguards:
   • Article 22(5) of the Constitution mandates that preventive detention orders must afford the detenue the earliest opportunity to make a representation.
   • Any delay in considering the representation violates this fundamental right.
3. Timely Consideration of Representations:
   • The court underscored that timely consideration of representations is essential to balance the executive’s power with individual liberties.

Precedent Analysis

The court relied on Sarabjeet Singh Mokha v. District Magistrate, Jabalpur (2021), where the Supreme Court held:

• Delays in deciding representations or communicating their rejection infringe on procedural safeguards under preventive detention laws.
• Such delays render detention orders illegal.

Court’s Reasoning

1. Non-application of Mind:
   • The detaining authority failed to note the petitioner’s acquittal in one of the cited FIRs. This omission demonstrated either ignorance of material facts or intentional disregard, both of which vitiate the detention order.
2. Delay in Representation:
   • The representation was decided after 4.5 months, which violated the requirement of expeditious consideration.
   • The delay deprived the petitioner of his statutory right to challenge the detention promptly.
3. Failure to Communicate Rejection:
   • The respondents did not notify the petitioner of the rejection, further violating procedural safeguards.

Conclusion

The court quashed the detention order, holding that:

• The detaining authority’s failure to consider material facts indicated a lack of application of mind.
• The delay in considering the representation and failure to notify the petitioner rendered the detention order illegal.
• The petitioner must be released immediately unless required in another case.

Implications

This judgment reinforces the procedural safeguards enshrined in preventive detention laws. It highlights that:

• Executive authorities must act promptly and with due diligence when exercising preventive detention powers.
• Any delay or omission in considering representations can invalidate detention orders, ensuring that individual liberties are not arbitrarily curtailed.

This decision sets a strong precedent for upholding procedural fairness in preventive detention cases.

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