Srinagar: “non-consideration of representation made by a detainee amounts to violation of constitutional safeguards under Article 22 of constitution,” High Court of J&K and Ladakh held while overturning detentions of three persons.
Justice Sanjay Dhar quashed detention of Mir Nasrullah, Mohammad Ramzan Naik and Ishfaq Ahmad Dar on the ground that the detaining authority failed to consider representation of the detainees despite forwarded for consideration.
Justice Dhar while giving reference to the judgment of the Apex Court in the case of Rahmatullah Vs. State of Bihar and Ors said that 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.
However, court said 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.
Court recorded that sub- Article (5) of Article 22 states 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.
“From the aforesaid legal position on the subject, it is clear that non-consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law,” court said.
Justice Sanjay Dhar overturned the detentions passed by District magistrate Srinagar and Shopian for unreasonably violating the constitutional safeguards guaranteed by the constitution and forthwith directed the release of the detainees in case not wanted in any other violation of law.
