NAZIR AHMAD SHEIKH Vs. STATE OF J&K

JUDGEMENT

(1.) IN this Habeas Corpus petition detention order DMS/PSA/163 dated 24 -01 -2000 of District Magistrate Srinagar, whereunder, petitioner Nazir Ahmad Sheikh is detained, is under challenged on various grounds. The petitioners counsel urges main three ground in support of his case. First that he was not given an opportunity to make representation under Article 22 (5) of the Constitution to the Government against the detention order. Second that the detention order is of Jan. 24, 2000. The grounds of detention were provided to him only on 08 -02 -2000, thereby violating Section 13 of the Public Safety Act. Thirdly, the impugned order suffers from non -application of mind.

(2.) IN answer Mr. R. Bazaz, GA, referred to counter on record, whereby he points out that the petitioner was given opportunity to project his case before Advisory Board under Section 15 of the J&K Public Safety Act against the detention and that the grounds of detention alongwith material was delivered to the detenue on 08 -02 -2000. He submits that there has been no violation of any statutory provision. Article 22 (5) of the Constitution provides: -

(3.) WHAT transpires from record is the only opportunity provided to the detenue is the one under J&K Public Safety Act of making representation against the detention to Advisory Board constituted under the Public Safety Act. The opportunity provided to the detenue under clause (5) of Article22 is in addition to the one provided under J&K Public Safety Act. The opportunity required to be provided to the detenue under the Constitution is paramount and the detaining authority is under constitutional mandate, not only to communicate the grounds on which the detention order is based, but also to offer the detenue the earliest opportunity of making representation against the order. The obligation of the Government to consider the detenues representation is separate from and independent of the consideration of the detenues case by Advisory Board. Consideration by Board is an additional safeguard and not a substitute for consideration of the representation by the Government as required by Article 22 (5). (See AIR 1969 SC: 1028; AIR 1972 SC: 739; AIR 1974 SC: 2154; AIR 1975 SC: 64; AIR 1979 SC: 1501 and AIR 1991 SC: 1090).