ORDER
Syed Bashir-ud-Din, J.
1. The order of detention dated 12-4-1997 of one Ishtiyaq Ahmad Shah S/o Haji Gh. Mohammad Shah R/o Malik Saheb Nowhatla, Srinagar passed by District Magistrate Srinagar (Annexure-A) is challenged in this writ petition under Section 103 of the Constitution of Jammu and Kashmir State corresponding to Article 226 of the Indian Constitution on the following grounds :-
The detenue Asstt. Executive Engineer, Srinagar Municipality was picked up by B.S.F-. 106 Bn. on the intervening night of 3/4 March, 1997 from his residence and was with them till 10-3-97 when he was handed over to Police Station Nowhatta. On 26-3 1997 detenue was admitted to bail by the Chief Judicial Magistrate, Srinagar after report was submitted to the Magistrate that he is involved in FIR 28/97 under Section 489(b), 121, 121(a), 122, 10/1 1,13 VLAP Act. However, he was not released. He continued to be in detention with J.I.C. Srinagar till 10-5-1997. It was only on 1 1-5-97 that he was shifted to Kathua and was served a copy of detention order at District Jail Kathua. The grounds of detention (Annexurc-B) have been denied one by one. It is alleged that the copies of photographs, fax message, Video cassettes etc. have not been provided to him. The Pass book as also the amount deposited in the Pass book, is claimed to be detenue’s money, which he has earned from business earlier to his joining the service. One of the grounds for detention is that the detenue is involved in FIR 28/97 Under Section 489, 121-A, 122 RPC 10/11 Criminal Law Amendment Act, 13 VLAP Act registered at Police Station Nowhatta and FIR No. 203/92 Under Section 302, RPC 3/25, IAA, 3(1) TADA, registered at Police Station Shaheed-Gunj. In FIR No. 28/97 he has been already admitted to bail, whereas, he is not even arrayed as accused in FIR No. 204/92 in which challan has been produced by CBI in Court on 26-5-1995, against three persons and the detenue is not one of them nor he is shown in any way connected with the case. Similarly, use of Maruati Car JKE-5711 for transporting arms from place to place is false as no such vehicle was ever owned by the detenue nor was such a vehicle under his occupation or use. All the material referred in the grounds of detention has not been supplied to the detenue.
2. The facts that the detenue was not involved in FIR No. 204/92, though shown in the grounds as involved in the case and that the accused had been admitted to bail in FIR 28/97 though not so indicated in the grounds and that the detenue was not involved in FIR No. 204/92 (Supra) in which challan had been produced in the Court much earlier to the order of detention, reveal and demonstrate that the detaining authority has been unaware of such developments and has passed the order in ignorance of the facts. Even the other grounds mentioned in the grounds of detention have not been properly adverted to nor considered in their proper context. It is further alleged that all these facts speak non-application of mind by the detaining authority while passing the impugned order of detention.
It is also pleaded that on behalf of the detenue three representations were made to the Minister of State (Home), the Governor of Jammu and Kashmir and Chief Minister of the State (Annexures E, F and G). These representations were made under the instructions and on behalf of the detenue, but the representations have not been considered and decided till date. It may be noted that the petition has been filed on 13-8-1997 and the representations filed earlier thereto have not been decided despite lapse of several months and in any case not less than seven months have passed by. Copies of the representations reveal that the Minister of State for Home has endorsed representation to Inspector General of Police, CID, CIK, Jammu on 11-4-97, while as the other two representations have been submitted thereafter. In all the representations the subject is the detention of Ishtiaq Ahmad Shah, the detenue seeking release on grounds stated thereto.
3. Despite opportunities right from 19-8-1997, the State of Jammu and Kashmir and the District Magistrate, Srinagar represented by Mr. Ghulam Mustaffa, G.A. have not filed any counter. At least six opportunities spreading over last six months have been granted to the respondents through Mr. G. Mustaffa, GA, to file counter, but for reasons best known to Respondents, counter has not been filed.
4. The matter has been heard in absence of counter.
5. Mr. Mustaffa, GA, at the hearing produced the record Of District Magi strate, which comprises of either leaves, out of which first two leaves are correspondance between Government Advocate and Distt. Magistrate Srinagar and Additional Chief Secretary (Home) arid the third leaf is record memo of an intimation of some warrant addressed to the detenue. Fourth leaf, is the letter of District Magistrate, Srinagar requesting Additional Chief Secretary (Home) for approval of the order of detention. The 5th leaf is copy of warrant of detention. Sixth leaf is intimation to the detenue regarding the option open to the detenue to appear before the Advisory Board and to make representation against the detention to the Government. The remaining two leaves are copies of ground of detention and the dossier.
6. Mr. G. Mustaffa, G A, despite directions by the Court has not been able to produce the record of the Home Department in the case and has shown his inability to produce the record before the Court. He that as it may, the parties have been heard and the matter considered.
7. Obviously, there is no return to the Rule nisi and the assertions in the petition, which remain uncontroverted in absence of returns, shall have to be treated as admitted. (AIR 1965 SC 575 : (1965 (1) CHLJ494) and AIR 1968 SC (sic) WP 355/68 dated 18-12-68).
8. As the allegations of failure to supply the material/information referred to in the grounds of detention, has also remained uncontroverted, the detention order is rendered bad and entitles-the detenue to release. (AIR 1982 SC 1221 : (1982 Cri.LJ 1730).
9. There is nothing on record to show that the three representations made by the petitioner to the Government since 11-4-1997, have been either considered or decided. As already stated no counter has-been filed. The non-consideration of the representation is not refuted. No record or material has been produced to indicate that the representations were considered.
10. Mr. G. Mustaffa, GA, has submitted that he is not in a position to controvert the allegations of non-consideration of the representations made by the petitioner as he has not been given any record or information to show that the representations were ever considered by the Government.
11. In absence of counter and in the light of the statement of the Govt. advocate, the allegation of receipt of representations by the Govt. and its non-consideration remains uncontroverted and has to be treated legally speaking as admitted. This being so, the Government is under a legal obligation to consider the detenue’s representations. The representations to the Government in terms of Article 22(5) of the Constitution is separate and independent of the consideration of the detenue’s case by the Advisory Board. Consideration by the Board may be additional safeguard, but not a substitute for consideration of the representation by the Government. (AIR 1991 SC 1090).
12. In 1992Suppl(3.)SCC65,ithasbeenheld that right to representation under Article 22(5) includes, right of expeditious disposal by the Government. Expedition is the Rule and the delay defeats the Article 22(5).
13. In AIR 1986 SC 356 : (1986 Cri LJ 493), it has been laid down that inordinate and unexplained delay on the part of the Government to consider the representation renders the detention illegal. Even, unexplained delay in considering the representation of the detenue would render the detention invalid as held in (1990)2 SCJ 359: (1990 Cri LJ 1507) and (19.89) 3 SCJ 526 : (1990 Cri LJ 578).
14. In AIR 1989 SCI 861 : (1989 Cri U 2119), 28 days delay in the disposal of the representation from date of receipt was held, in the facts and circumstances of the case, as unreasonable delay and as the satisfactory explanation did not come forth, the detention was held invalid on that score.
15. For the aforesaid reasons, the detention Order No. DMS/PSA/26/97 dated 12-9-97 (Annexure-A) is held legally bad and invalid. With the result the detention order is quashed. At this stage the counsel for the petitioner submits that the detenue is out and presently on parole. The detention order having been declared as invalid, the detenue Ishtiyaq Ahmed Shah S/o Shri Ghulam Mohammad Shah R/o Malik Sahib Nowhatta, Srinagarcannotbe detained any further under the impugned order of detention. Orders accordingly.