Jammu & Kashmir High Court
Reserved On: 24.07.2025 vs The Union Territory Of Jammu & Kashmir on 31 July, 2025
2025:JKLHC-JMU:2031
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.34/2025
Reserved on: 24.07.2025.
Pronounced on: 31.07.2025
Liyaqat Ali, Age 45 years
S/O Abdul Majid,
R/O Lohai, Tehsil Lohai, Malhar,
District Kathua, J&K
Through brother
Gull Mohd, S/O Abdul Majid ....Petitioner(s)/Appellant(s)
Through :- Mr. Sanchit Verma, Advocate.
V/S
1. The Union Territory of Jammu & Kashmir
Through Commissioner/Secretary to
Government, Home Department,
Civil Secretariat, Srinagar/Jammu
2. District Magistrate, Kathua
3. Senior Superintendent of Police, Kathua.
4. Superintendent, Central Jail, Kot Bhalwal, Jammu. ....Respondent(s)
Through :- Mr. Suneel Malhotra, GA
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner namely Liyaqat Ali S/O Abdul Majid, R/O Lohai, Tehsil
Lohai Malhar, District Kathua (for short „the detenue‟) through his brother, has
challenged the detention Order No.PSA/132 dated 10.12.2024 (impugned
order), issued by respondent No.2, District Magistrate, Kathua (hereinafter to be
referred as “the detaining authority”), whereby he has been placed under
preventive detention, in order to prevent him from acting in any manner
prejudicial to the maintenance of „public order‟.
2. Petitioner has raised many grounds to assail the impugned order. It is his
contention that Detaining Authority though referred earlier cases from the years
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2003, 2021 and 2022, along with four DDR entries, as found in the Grounds of
Detention, what was placed before him was only the copies of reports in those
matters. Had the Authorities placed the outcome of such matters vis-à-vis
acquittal in case FIR No.148/2003 and FIR No.05/2021, there would have been a
different conclusion than the one which is challenged in the present petition. It is
also contended that the petitioner was not informed about his right to make
representation to the detaining authority as well as government as early as
possible, which prevented him from making effective and meaningful
representation; that the impugned detention order has been passed mechanically
without application of mind, inasmuch as, the grounds of detention are mere
reproduction of the dossier; that the petitioner was not explained the contents of
detention order and grounds of detention in the language he understands which
also prevented him from making meaningful representation to the detaining
authority as well as government; that that the FIRs relied upon pertaining to the
year 2003, 2021 and 2022 could not have been relied upon in view of the fact
that the cases registered in the year 2003, 2021 and 2022 being stale, for lack of
live and proximate link, between the alleged activities and the preventive
detention order, could not have been considered to pass the impugned order in
the year 2024. Also, that the 4 DDRs recorded at P/S Malhar from 29.10.2024 to
21.11.2024 were general and vague conjectures without enumerating any
specific activity being carried out by the detenue, so as to warrant his detention;
that preventive action under Section 107 CrPC and 126 BNSS was claimed to
have taken against the petitioner, yet no record pertaining to said action has been
provided to the detenue, infringing the fundamental right of the detenue with
regard to non-supply of record, therefore, documents on the basis of which
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detention order was passed have not been provided to the detenue, rendering him
unable to make effective representation; that the detention order is confusing as
it is passed on both, to maintain „public order‟ as well as „Security of State‟.
Lastly, it is prayed that the petition be allowed and the impugned detention order
be set aside.
3. The respondent No.2, in his counter affidavit, has controverted the
averments made in the petition and submitted that the detenue is an OGW and a
staunch facilitator of terrorist activities and sympathizer of banner terrorist
organization and provides all possible help like transportation, internet, food and
shelter to the banned terrorists outfits; that his actions are such a brazen and
provocative in nature, as to create an environment of insecurity and terror,
severely endangering public peace, tranquility, and communal harmony and
therefore it was imperative to prevent him from continuing his criminal/anti
social activities and to maintain public peace and order under the preventive
detention; that the detention warrant along with grounds of detention was
properly executed through PSI Riaz Ahmed of P/S Malhar under proper
acknowledgement of the detenue and he was fully made to understand in the
language he understands; that the detenue was also informed that he can make
representation to the Govt. against the detention order, if he so desires. Lastly, it
is prayed that the petition be dismissed and the impugned detention order be
upheld as the same has strictly been passed as per the provisions of J&K Public
Safety Act. The respondents have produced the detention records, in order to
support the contentions raised in the counter affidavit.
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4. Learned counsel for the petitioner, while seeking quashment of the
impugned order, reiterated various grounds but his main thrust during the course
of arguments was on the following grounds:
(I) That the outcome of case FIR No.148/2003 of P/S Billawar as well
as FIR No. 05/2021 of P/S Malhar was not brought to the notice of
the competent authority who passed the order of detention while
making the aforesaid FIRs as the foundation for passing the
impugned detention order;
(II) That he was not informed about his right to make effective and
meaningful representation, as there is no mention of time in the
detention order, within which, he can make representation;
(III) That he was not informed that he can even make representation to
the detaining authority against his detention;
(IV) That grounds of detention are almost Xerox copy of the police
dossier.
5. Learned State Counsel, ex adverso, making reference to the grounds of
detention, argued that the activities of the detenue were not only criminal but
also in the direction of causing disturbance to the public order; that detention
ordered vide impugned order was in the public interest; that the grounds of
detention are not replica of the dossier submitted by the SSP concerned, and the
impugned detention order is passed with due consideration and application of
mind; that there is no necessity to give in detail the activities of the detenue as
the order is preventive in nature; that though the detention order is passed to
maintain „public order‟ as well as „security of State‟ but the detention order is
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based on „public order‟; that whole of the material relied upon had been supplied
to the detenue by the executing officer at the time of execution of the detention
warrant and contents thereof were explained to the detenue in the language
understandable to him; that all the constitutional or statutory safeguards were
observed in letter and spirit and the petitioner had also been informed of his right
to move representation against his detention, in terms of impugned order. It was
urged, finally, that the same be upheld and petition be rejected.
6. Heard learned counsel for the parties at length, perused the detention
record and considered.
7. Para 5 of the counter affidavit filed on behalf of District Magistrate,
Kathua-respondent No.2 has detailed the following cases FIRs registered against
the petitioner at different police stations:
i. FIR No.148/2003 u/s 307/341/121/121-A/120-120-2 RPC P/S
Billawar;
ii. FIR No. 05/2021 u/s 452/509 IPC P/S Malhar; iii. FIR No. 15/2022 u/s 341/342/323/504 IPC P/S Malhar; and iv. u/s 107 CrPC dated 14.08.2023. v. u/s 107 CrPC dated 21.02.2024. vi. u/s 126 BNSS dated 13.08.2024. vii. u/s 126 BNSS dated 22.09.2024. viii. u/s 126 BNSS dated 02.11.2024
Besides the above cases/FIRs, grounds of detention show that following 04
DDRs entries are recorded at P/S Malhar:
i. DDR No.011 dated 29.10.2024
ii. DDR No. 012 dated 02.11.2024
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iii. DDR No. 015 dated 05.11.2024, and
iv. DDR No. 11 dated 21.11.2024
Involvement of the detenue in the aforementioned cases appears to have been
heavily weighed with the detaining authority, while passing the detention order.
8. Petitioner has placed on record copies, of the order dated 15.01.2011
passed by the court of Principal Sessions Judge, Kathua acquitting the accused of
the offences in case FIR No.148/2003 u/s 307/34/121/121-A/120-B/212/201
RPC 7/27 A.A. Order dated 25.08.2021 passed by the Chairman, Legal Service
Committee, Billawar disposing of the Challan in case FIR No.05/2021 U/S 451
IPC, P/S Malhar as compounded between the parties and closed the case as
decided. Further perusal of the grounds of detention vis-à-vis FIR No.373/2024
would show that the accused stood bailed out.
9. So far as the DDR entries (supra) are concerned, it is an admitted case
that those have not culminated in any criminal cases. Merely recording DDRs
alleging some acts cannot be the ground to detain a person. It is surprising that if
the acts mentioned in the DDR entries are criminal acts and are cognizable in
nature, then why the State has not filed any First Information Report. Law
provides that if cognizable offence is committed and is brought to the knowledge
of any authority, First Information Report should be lodged. If at all those acts
mentioned in DDRs make out any criminal offence, what prevented the State to
file a First Information Report is a mystery.
10. As regards the complaints u/s 173 CrPC and u/s 126 BNSS, perusal of
the execution report would show that detenue was provided detention order,
notice of detention, grounds of detention, dossier of detention, copies of FIR,
statement of witnesses and other relevant documents. However, respondents
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have failed to substantiate with regard to the detailed documentation made
availale to the detenue so as to enable him to file a meaningful and effective
representation to the detaining authority or the Government, so much so that no
record pertaining to preventive action under CrPC and BNSS has been provided
to the detenue. Since the petitioner has all along denied that relevant material
was supplied to him, the respondents ought to have filed an affidavit of the
executing officer to controvert the above allegations, which has ostensibly not
been done by the respondents in the instant case.
11. The whole edifice, on which the impugned detention order is based,
crumble when confronted vis-à-vis the outcome of the aforesaid FIRs. Had the
outcome of the aforesaid FIRs brought to the notice of the detaining authority,
the order could have been passed after subjective satisfaction. On this score
alone, the detention order having been passed without application of mind by the
detaining authority is not sustainable and liable to be quashed.
12. Second ground as argued is, that the detenue was not informed about his
right to make representation within stipulated time before the detaining authority
as well as government, thereby violating his statutory and constitutional rights. It
is translucently clear from perusal of the impugned detention order that the
Detaining Authority has not communicated to the detenue the time limit, within
which, he could make a representation to it, till approval of the detention order
by the Government. In a case of National Security Act, titled “Jitendra Vs. Dist.
Magistrate, Barabanki & Ors.”, reported as 2004 Cri.L.J 2967, the Division
Bench of Hon‟ble Allahabad High Court, has held:-
“10. We make no bones in observing that a partial communication
of a right (in the grounds of detention) of the type in the instant
8 HCP No.34/20252025:JKLHC-JMU:2031case, wherein the time limit for making a representation is of
essence and is not communicated in the grounds of detention,
would vitiate the right fundamental right guaranteed to the
detenue under Article 22(5) of the Constitution of India,
namely, of being communicated, as soon as may be the
grounds of detention.”
13. Since the detenue‟s right to make a representation to the detaining
authority was only available to him till approval of detention order by the
Government, it follows as a logical imperative that the detaining authority should
have communicated to the detenue in the grounds of detention the time limit,
within which, he could make a representation to it i.e., till the approval of the
detention order by the State Government. There is, therefore, force in the above
argument of the detenue. On this count alone, the impugned detention order
cannot sustain and is liable to be quashed.
14. In so far as third ground is concerned, the law is well settled and is no
longer res integra that the detenue must be informed of his right to make
representation to the Detaining Authority as this is one additional avenue for his
detention order to be reconsidered in addition to the representation to be made to
the Government. It is also settled law that once the Government passes an order
approving the order of detention, the Detaining Authority becomes functus
officio and thereafter cannot review its order. Therefore, the Detaining Authority
had to inform the detenue about his right at the very outset so that the detenue
can make a representation for reconsideration by the Detaining Authority. The
Hon‟ble Apex Court in a judgment titled “Sophia Gulam Mohd. Bham v. State
of Maharashtra & Ors. (AIR 1999 SC 3051), has held as under:
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“The right to be communicated the grounds of detention flows from
Article 22(5) while the right to be supplied all the material on
which the grounds are based flows from the right given to the
detenue to make a representation against the order of detention. A
representation can be made and the order of detention can be
assailed only when all the grounds on which the order is based are
communicated to the detenue and the material on which those
grounds are based are also disclosed and copies thereof are
supplied to the person detained, in his own language.”
15. In the case on hand, the ground that the detenue was not informed about
his right to file a representation to the Detaining Authority can also be
ascertained from the detention order. The Detaining Authority as per record, vide
his No.DMR/JC/2024-25/3409-73 dated 10.12.2024 had informed the detenue
that he may make a representation to the Government against the detention
order, if he so desires, meaning thereby that the Detaining Authority had not
informed the detenue that he could file a representation before the Detaining
Authority as well. Therefore, the contention made on behalf of detenue that the
detention order is vitiated on this count has also force as a valuable right of filing
representation before the Detaining Authority to reconsider its decision, was not
afforded to the detenue.
16. The last ground, which has been urged by the learned counsel for the
petitioner is that the Detaining Authority while formulating the grounds of
detention has failed to apply its mind, inasmuch as the grounds of detention are
almost xerox copy of the police dossier. A perusal of grounds of detention and
the police dossier reveals that the language and expressions used in both the
documents are almost similar to each other with intermixing of words here and
there. This clearly shows that the detaining authority has acted in a mechanical
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manner. The Supreme Court has, in the case of Jai Singh and others vs. State
of Jammu and Kashmir, (1985) 1 Supreme Court Cases 561 clearly stated
that where the grounds of detention are verbatim reproduction of the dossier
submitted by the police, it goes on to show that there is non-application of mind
on the part of the detaining authority. In Rajesh Vashdev Adnani vs. State of
Maharashtra and others, (2005) 8 SCC 390, the Supreme Court again
reiterated that where the detention order is verbatim reproduction of the police
dossier, the said order suffers from non-application of mind on the part of the
Detaining Authority.
17. In the face of the aforesaid legal position, it can safely be stated that the
detaining authority in the instant case has acted in a mechanical manner while
passing the impugned order of detention rendering it unsustainable in law.
18. Personal liberty is one of the most cherished freedoms, perhaps more
important that the other freedoms guaranteed under the Constitution. It was for
this reason that the Founding Fathers enacted the safeguards in Article 22 in the
Constitution so as to limit the power of the State to detain a person without trial,
which may otherwise pass the test of Article 21, by humanizing the harsh
authority over individual liberty. In a democracy governed by the rule of law, the
drastic power to detain a person without trial for „security of the State‟ and/or
„maintenance of public order‟ must be strictly construed. However, where
individual liberty comes into conflict with the interest of the security of the State
or public order, then the liberty of the individual must give way to the larger
interest of the nation. The Hon‟ble Apex Court in Smt. Icchu Devi Choraria v.
Union of India & Ors. (AIR 1980 SC 1983) held as under:
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“The court has always regarded personal liberty as the most
precious possession of mankind and refused to tolerate illegal
detention, regardless of the social cost involved in the release of a
possible renegade.
This is an area where the court has been most strict and
scrupulous in ensuring observance with the requirements of the
law, and even where a requirement of the law is breached in the
slightest measure, the court has not hesitated to strike down the
order of detention or to direct the release of the detenue even
though the detention may have been valid till the breach occurred.”
19. Having regard to the facts, firstly, whole reliance of the detaining
authority on the stale cases of the year 2003 and 2021, in which the detenue
stands acquitted, secondly, not informing the detenue that he can make
representation to the detaining authority against the detention order, thirdly time
frame is not specified in the detention order within which detenue can file
representation against the detention order and fourthly non application of mind
by the detaining authority, it can safely be held that the detenue was disabled to
exercise his right to file a representation against his detention, in terms of Article
22(5) of the Constitution of India; that in this backdrop, it is established that the
detaining authority has passed the impugned detention order arbitrarily and
mechanically, without application of mind and the constitutional and statutory
safeguards available to the detenue were also observed in breach and trampled,
vitiating the impugned detention order, which renders it unsustainable and liable
to be quashed.
20. Viewed thus, the petition is allowed and the impugned detention Order
No.PSA/132 dated 10.12.2024, passed by respondent No. 2, District Magistrate,
Kathua, is hereby quashed. The detenue-Liyaqat Ali S/O Abdul Majid,
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R/O Lohai, Tehsil Lohai Malhar, District Kathua is directed to be released from
the preventive custody forthwith, if not required in any other case(s). No costs.
21. The record of detention be returned to the respondents through their
counsel.
22. Disposed of, accordingly, along with connected application(s).
(MA CHOWDHARY)
Jammu: JUDGE
31.07.2025
Raj Kumar
Whether the order is speaking? Yes
Whether the order is reportable? Yes