Srinagar- The High Court of J&K and Ladakh has held that non-consideration or an unreasonably belated consideration of the representation against PSA detention renders the same unsustainable in law.
Quashing a detention order, dated 30 August 2022, against one Aqib Farooq Bhat of Budshah Nagar here, a bench of Justice Sanjay Dhar said that the non-consideration of the representation indisputably amounts to violation of constitutional safeguards provided the provisions of Article 22(5) of the Constitution.
“…it is clear that non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law,” the court said and quashed the detention order. “The detenue (Bhat) is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.”
Bhat had specifically contended that he had made a representation against his detention through his father on 5 November 2022. The copy of the representation, the court said, bears the seal and endorsement of the office of the District Magistrate Srinagar. Bhat specifically pleaded in his petition that he made a representation before the detaining authority but the same has not been considered. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit, the court said.
The court referred to Supreme Court’s judgement, underlining that while 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.
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