JUDGMENT
Nisar Ahmad Kakru, J.
1. Zubair Ahmad Bhat had to land in preventive custody under the provisions of the Jammu and Kashmir Public safety Act in pursuance of the order of District Magistrate, Baramulla bearing No. 60 of 2000 dated 16.11.2000 which became subject matter of the Habeas Corpus Petition No. 103/2001. It was allowed by judgment dated 31.07.2001 and order of detention quashed but the detention was prolonged due to second order of detention bearing No. 97 of 2003 dated 19.04.2003 passed by the same detaining authority i.e. the District Magistrate, Baramulla. It is the said order which is questioned by this Writ petition.
2. A perusal of the impugned order reveals that the order of detention is based on the registration of FIRs 155/2002 and 161/2002 notwithstanding the fact that the investigation into these FIRs had been closed because of absence of evidence. This important event is neither mentioned in grounds of detention nor in the order of detention. Such omission makes it a clear case of non application of mind, resultantly, the impugned order is vitiated. In taking this view I am fortified by judgment of the Apex Court passed in Anant Sakharam Raut v. State of Maharashtra and Anr. reported in AIR 1987 page 137 wherein it is pointed out:
“5/…… There is a absolutely no mention in the order about the fact
that the petitioner was an under trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention. 8/. We hold that there was clear non application of mind on the part of the detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgment of the Bombay High Court under appeal, quash the order of detention and direct the petitioner be released forthwith….”
3. Sustainability of impugned order of detention is also questioned on the strength of mandate of article 22(5) from which a right to representation flows to the detenue which is said to have been observed in breach. To substantiate the contention my attention is drawn to a communication addressed by the District Magistrate to the father of the detenue vide communication No. DMB/PSA/2670 dated 19.04.2003 (Annexure P4 to the writ petition) requiring the addressee therein to make a representation to the Government if he so desires which was responded through a representation by the detenue’s father which fact is established by the detaining authority’s communication bearing No. DMB/PSA/2670 dated 19.04.2003 (Annexure P3 to the writ petition).
4. Has the said representation received consideration, when appreciated in the light of the original record, it emerges that at no point of time representation of the detenue’s father was sent to the Government nor was it put up before the Advisory Board, on which count the petitioner has specifically made an averment which too has not been refuted by the respondents, Thus an inference, that the representation filed by detenue’s father was not forwarded, resultantly, not considered. What is the fall out of such omission, it may be useful to refer to Sub-section (1) Section 13 of the Jammu and Kashmir Public Safety Act 1978 which reads :
“When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, [but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention] communicate to him grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the Government.”
5. A bare perusal of the above reproduced Sub Section reveals that the very enactment which empowers the Government to detain a person provides a safeguard to the detenue in the form of a right of representation. By having failed to send the representation to the Government violation of the statute is manifest.
6. What about discharge of constitutional obligation advantageous it will be to refer to Clause 5 Article 22 of the Constitution of India which reads
“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.”
7. Perusal of the constitutional provision makes it manifestly clear that an opportunity to make a representation against the order is a fundamental right of the detenue, obviously, the authorities are duty bound to dispose of the representation at the earliest as otherwise the mandate of Clause (5) of article 22 of the Constitution of India and sub section 1 of Section 13 of the Jammu and Kashmir Public Safety Act 1978 would be diluted and frustrated.
8. How has the apex Court dealt with the failure to forward the representation, answer is readily available from the decision handed down in B. Alamelu v. State of Tamil Nadu (AIR 1995 SC 539) and Para 8 may be extracted:
“…. it must be held that the constitutional right of the detenue under Article 22(5) has got violated on account of non-sending of the copy of the representation by the Jailor to the appropriate authority of the Central Government as expeditiously as possible after he received it on 4th May, 1994 hence continued detention of the detenue has become illegal. The appeal is, therefore, allowed. The judgment and order passed by the High Court are set aside. The respondents are directed to set the detenue Mr. Balakrishnan at liberty, if not otherwise required to be detained in any other case.”
9. Having failed to forward the representation of detenue’s father requirements of Clause 5 article 22 are not complied with, consequently prejudice caused to the detenue amounting to invasion of his personal liberty and safeguards enshrined in the Constitution.
10. There are many other grounds which are taken to oppose the sustainability of the order of detention but being of the considered opinion that non observance of constitutional and legal obligations aforementioned renders the impugned order liable to be aside, I choose not be deliberate upon rest of the grounds. For what has been stated hereinabove, the writ petition succeeds and the impugned order of detention bearing No. DMB/PSA 97 dated 19.04.2003 is quashed with a further direction to the respondents to release the person of Zubair Ahmad Bhat S/O Muhammad Shafi Bhat R/O Kanlibagh Baramulla Kashmir forthwith if not required in any other case. Record of the case has been returned to the Learned Government Advocate in the open Court.
11. As regards claim advanced for compensation it has to be borne in mind that in the dossier police has highlighted two FIRs bearing No. 155/02 and 161/02 against the detenue and placing reliance on the said FIRs second order of detention is passed by the District Magistrate despite the fact that FIR 155/02 stands closed by Investigating Officer vide Zimini No. 11 dated 07.01.2003 accepted by SHO vide Zimini 12 dated 19.01.2003 because of deficiency of evidence. Same is true of FIR 161/02 which is closed by Investigating Officer vide Zimini 6 of 10.12.2002 agreed to by SHO vide Zimini 7 dated 17.12.2002. How saddening it is that police has persuaded the District Magistrate to exercise the jurisdiction on the basis of FIRs rendered impertinent by the finding returned by none other than the police itself. Regard being had to the fact that the order of detention is founded on FIRs 155/02 and 161/02 which are closed by police coupled with the fact that it was passed subsequent to the culmination of FIRs as not proved ample indications were given to the learned appearing counsel for the respondents that review of the action impugned was called for to settle the matter at the level of the Government itself without stretching it any further but endeavour of the Court was not taken well making adjudication of the claim for compensation on its merits inevitable. Be that as it may, notwithstanding the fact that the power to detain is vested in the District Magistrate who is required to apply his mind before passing the order, yet, sight cannot be lost of the legal position that State is duty bound to be fair in its dealings qua state subject and those who have resorted to distortion, misrepresentation and non application of mind which is writ large in the case on hand, do owe an explanation to the Court as to why such gross negligence and who is responsible for it? Being of the considered opinion that these questions have direct bearing on the claim laid by the detenue for compensation, it is appropriate to direct the District Magistrate and Superintendent of Police concerned to file reply on affidavit within two weeks if they have anything to urge in opposition to the claim. The Respondent-State shall also file the returns within the same period. Be listed thereafter.