District Magistrate can revoke detention order before Government approval: Jammu and Kashmir High Court

The Jammu & Kashmir and Ladakh High Court recently held that that the detaining authority under J&K Public Safety Act can revoke the order for detention of a person, unless the decision has already been approved by the government [Bashir Ahmed Naik vs UT of J&K and Ors]..Justice Sanjay Dhar said that a District Magistrate after passing a preventive detention order against a person under the Public Safety Act, is required to forward it immediately to the government for approvalThe law provides that such an order shall not remain in force for more than twelve days unless it has been approved by the government, it noted."Thus, an order of detention made by a District Magistrate is required to be approved by the Government not later than 12 days from the date of order," the Court said..In this backdrop, the Court considered whether the detaining authority can revoke its own order before government approval. While ruling that the District Magistrate can do so, the Court relied upon the General Clauses Act."In terms of Section 21 of the General Clauses Act, 1897, power to make an order includes power to add to, amend, vary or rescind, notifications, orders, rules or bye laws," it noted. The Court explained that an authority which is vested with jurisdiction to make an order is also empowered to add to, amend, vary or rescind such an order."Therefore, the District Magistrate, who is empowered to make the order of detention, is also empowered to revoke it till such time it is not approved by the Government," the Court held..It was hearing a plea challenging the detention order passed by the District Magistrate of Ramban against a person accused of committing anti-national activities. The petitioner Bashir Ahmed Naik challenged the detention order before High Court on the ground that he was not informed about his right to make a representation before the detaining authority.It was also alleged that material on the basis of which the grounds of detention were formulated had not been completely furnished to Naik.However, the State countered the arguments by arguing that all the statutory and constitutional safeguards had been followed while passing the detention order..Considering the submissions, the Court found that Naik had not been informed about his right to make a representation against the order of detention before the detaining authority.It noted that the District Magistrate, Ramban had only told him about making a representation before the government.The Court also noted that the detention order had been approved by the government six days after it was passed by the District Magistrate,"During this period i.e. 19.05.2023 to 25.05.2023, District Magistrate, Ramban was vested with jurisdiction to revoke the said order but there is nothing on record to show that the District Magistrate did inform the petitioner about his right to make a representation before the said authority, though he did address a communication to the detenue that he has right to make a representation to the Government. In view of this, the petitioner has been deprived of his right to make a representation before the detaining authority.".In this regard, Justice Dhar relied upon an earlier decision of a division bench which had held that non-communication of the fact that the detainee can make a representation to the detaining authority till the government's approval, would constitute an infraction of valuable constitutional rights. "It has been further held that such non-communication would invalidate the order of detention," the single-judge noted.Thus, the Court found it a fit case to quash the detention order on this ground alone."The detenue is directed to be released from the preventive custody, provided he is not required in connection with any other case," it ordered..Advocate ND Qazi appeared for the petitioner.Government Advocate Eishaan Dadhichi appeared for the respondents..[Read Judgment]