Jammu & Kashmir High Court – Srinagar Bench
Uzair Riyaz Parray vs Union Territory Of J&K Through … on 1 August, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
HCP No. 26/2024
Reserved on: 24.07.2025
Pronounced on: 01.08.2025
Uzair Riyaz Parray
....... Petitioner(s)
Through: Mr. Wajid Haseeb, Advocate
Versus
1. Union Territory of J&K through Principal Secretary, Home Department , J&K
Govt. Civil Sectt. Srinagar/Jammu
2. District Magistrate, Pulwama
....Respondent(s)
Through: Mr. Jehingeer A Dar, GA
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition, Order no. 07/DMP/PSA/24 dated
10.01.2024 (impugned detention order) passed by District Magistrate,
Pulwama – respondent no. 2, (for short „detailing authority‟) whereby detenu,
namely, Uzair Riyaz Parray, S/o Riyaz Ahmad Parray R/o Ashmender Tehsil
Pulwama District Pulwama, has been placed under preventive detention with
a view to prevent him from acting in any manner prejudicial to the security of
the State is sought to be quashed and the detenu set at liberty on the grounds
made mention of therein.
2. The case set up by the petitioner in the petition is that the detenu was
arrested without any reason in the month of October, 2024 and was taken to
Police Station, Pulwama where he was detained illegally for several months
and thereafter was shifted to Central Jail Kotbhalwal, Jammu to be detained in
terms of impugned order dated 10.01.2024 under the provision of Public
Safety Act. The respondent No. 2 has passed the impugned detention order
against the detenu mechanically without application of mind as he had already
been admitted to bail under Section 107 Cr. PC but this important fact has not
been mentioned in the grounds of detention ; inasmuch as the detaining
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authority has not applied its mind to the facts of the case but has acted on the
report submitted by Senior Superintendent of Police, Pulwama, as the grounds
of detention do not indicate any criminal proceedings allegedly initiated under
Section 107/151 Cr. PC, for which he has been bound down for keeping
peace and tranquillity; inasmuch the detaining authority has mentioned various
allegations in the grounds of detention, however no specific allegation has
been given regarding the detenu in the cases mentioned in the grounds of
detention, not even an iota of connection is given in the grounds of detention
connecting the detenu with the allegations. It is also stated that the detenu has
developed a deep passion towards terrorism and providing them food, shelter,
information about their movements and also transportation of arms etc.,
however, he has no connection with any terrorist organization or with terrorist
cadres, being vague, imaginary and without basis. It is further stated that
detenu is not involved in any criminal activity nor any FIR is registered
against him regarding any prejudicial activity, as such, there was no
compelling reason for detaining authority to pass impugned detention order.
The detenu is stated to have not been provided all the material relied upon by
detaining authority.
3. It is also averred that detaining authority has passed the impugned
detention order mechanically without application of mind, inasmuch as the
representation submitted by the detenu has not been considered nor relevant
material as requested has been furnished to the detenu when the detaining
authority is constitutionally duty bound to furnish the same. However, in the
instant case, whatever material has been furnished to the detenu, same is
vague, imaginary, non-existent and without basis. The detenu is neither
associated with any organization nor involved in any such activities which are
prejudicial to the security of the State.
4. Respondents have filed reply affidavit, insisting therein that the
activities indulged in by detenu are highly prejudicial to the security of the
State and, therefore, his remaining at large is a threat to the security of State.
The activities narrated in the grounds of detention have been reiterated in the
reply affidavit filed by respondents. The factual averments that detenu was
not supplied with relevant material relied upon in the grounds of detention
have been refuted. It is insisted that all the relevant material, which has been
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relied upon by the detaining authority, was provided to the detenu at the time
of execution of warrant.
5. I have heard learned counsel for parties and considered the matter. I
have gone through the detention record produced by the counsel appearing for
respondents.
6. There is also a submission on the part of learned counsel for petitioner
that detenu was not provided all the material relied upon by detaining
authority. To consider this submission, I have gone through the detention
record produced by learned counsel for respondents. Perusal of “Execution
Report” as also “Receipt of Grounds of detention & other relevant record”
would reveal that detenu, besides other material, copies of FIR, statements of
witnesses and other related relevant documents have been furnished to
detenu. It would be appropriate to reproduce relevant portion of Execution
Report as under:
“The detention order (01 leaf), Notice of detention (01 leaf) grounds of
detention (03 leaves) Dossier of detention (03 leaves) copies of FIR,
statements of witnesses and other related relevant documents (02leaves)
Total 10 leaves) have been handed over the above said detenu…..”
7. Relevant portion of “Receipt of Ground of detention & other relevant
record” is also reproduced hereunder:
“Received copies of detention order (01 leaf), Notice of detention (01 leaf)
grounds of detention (03 leaves), Dossier of detention (03 leaves) Copies of
FIR, Statements of witnesses and other related relevant documents (02
leaves) Total 10 leaves through executing officer ……”
8. When above “Execution Report” as also “Receipt of Grounds of detention &
other relevant record” are read together with grounds of detention made by
detaining authority, it reflects total non-application of mind. Bare perusal of
grounds of detention does not show or suggest any FIR registered or lodged against
detenu whereas perusal of aforesaid “Execution Report” as also “Receipt of
Grounds of detention & other relevant record” reveals that copies of FIR,
Statement of Witnesses etc., have been given to detenu. Thus, this important aspect
of the matter indicates non-application of mind and result thereof is that it vitiates
impugned detention.
9. On the contrary, Mr. Jahingeer A Dar, GA, while opposing the submission
of Mr. Wajid Haseeb, would vehemently contend that the order under challenge
has been passed by the detaining authority validly and legally owing to the
activities of detenu being prejudicial to the Security of the State.
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10. The next ground taken by the learned counsel for petitioner is that the
representation by detenu through his mother post detention has neither been
considered nor decided nor any notice/information about any decision taken
thereon has been conveyed or communicated so far to petitioner, thereby
violating the guaranteed rights of petitioner and consequently vitiating impugned
order of detention. According to him it is only by virtue of the Reply filed by
respondent no.2 that petitioner has come to know that the representation filed by
mother of detenu has been rejected.
11. Although in their reply, respondents stated that they have considered and
rejected the representation of mother of detenu, yet the rejection order has
neither been conveyed to him nor appears to have been sent to Advisory Board,
which vitiates impugned order of detention.
12. It is well settled that detaining authority must provide detenu a very early
opportunity to make a representation. The detaining authority is also required
to consider the representation as soon as possible and this preferably must be
before the representation is forwarded to Advisory Board. The representation
must be forwarded to Advisory Board before the Board makes its report. The
consideration by detaining authority of representation must be entirely
independent of the hearing by the Board or its report, expedition being
essential at every stage. The appropriate Government/detaining authority is to
exercise its opinion and decision on the representation of detenu before
sending the case along with detenu‟s representation to Advisory Board.
Reference in this regard is made to JayanarayanSukul v. State of W.B.
(1970) 1 SCC 219; Pankaj Kumar Chakraborty v. State of W.B. (1969) 3
SCC; FrancesCorallie Mullin v. W.C. Khambra (1980) 2 SCC 275; and
Ankit Ashok Jalan v. Union of India and others, (2020) 16 SCC 127.
13. Right to make a representation is an enshrined right guaranteed under
Article 22(5) of the Constitution of India. It incorporates a dual requirement:
first, it requires detaining authority to communicate grounds of detention as
soon as may be; and second, it requires to afford detenu an earliest
opportunity to make a representation. Both these procedural requirements are
mutually reinforcing. The communication, as soon as may be, of the grounds
of detention is intended to inform the detenu of the basis on which the order
of detention has been made. The expression “as soon as may be” imports a
requirement of immediacy. The communication of grounds is in aid of4
HCP No. 26/2024
facilitating right of detenu to submit a representation against order of
detention. In absence of grounds being communicated, detenu would be left in
the dark about the reasons which have led to issuance of order of detention.
The importance which the constitutional provision ascribes to communication
of grounds as well as affording of an opportunity to make a representation is
evident from the use of the expression “as soon as may be” in the first part in
relation to communicating the grounds and allowing the detenu “the earliest
opportunity” of availing of the right to submit a representation. Thus, the
significance of Article 22 of the Constitution is that representation submitted
by detenu must be disposed of at an early date. The communication of
grounds of detention, as soon as may be, and the affording of earliest
opportunity to submit a representation against the order of detention will have
no constitutional significance unless detaining authority deals with
representation and communicates its decision with expedition.
14. Section 13 J&K Public Safety Act contains a requirement that 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, in the language
which is understandable to him the 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.
15. Article 22(5) of the Constitution provides for communication of grounds
on which order of detention is made by detaining authority “as soon as may
be”. Section 13 (1) of the Act uses the expression “as soon as may be”,
qualifying it with the requirement that the communication of grounds should
ordinarily not be later than five days and, in exceptional circumstances, for
reasons to be recorded in writing not later than ten days from the date of
detention. Section 8(1) of the Act, thus, also embodies the second requirement
of Article 22(5) of affording to detenu the earliest opportunity of making a
representation against the order to the appropriate government.
16. Section 15 of the Act mandates a reference to the Advisory Board
constituted under Section 14 of the Act. What Section 15 says is profitable to
be reproduced hereunder:
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“Section 15. Reference to Advisory Board.
In every case where a detention order has been made under this Act, the
Government shall, within four weeks from the date of detention under the
order place before the Advisory Board constituted by it under section 14,
the grounds on which the order has been made, the representation, if any,
made by the person affected by the order and in case where the order has
been made by an officer, also report by such officer under sub-section (4) of
section 8.”
17. Under Section 15 of the Act, the appropriate government has to place the
grounds on which the order of detention has been made within four weeks
from the date of detention of the person together with a representation, if any,
made by the person affected by the order of detention before the Advisory
Board constituted under the provisions of Section 14 of the Act. The
Advisory Board, under the provisions of Section 16 of the Act, after
considering the material placed before it and after calling for such further
information as it may deem necessary from the Government or from the
person called for the purpose through the Government or from the person
concerned and if in any particular case it considers it essential so to do or, if
the person concerned desires to be heard, after hearing him in person, submit
its report to the Government within six weeks from the date of detention.
18. Article 22(5) of the Constitution reflects keen awareness of the framers
of the Constitution that preventive detention leads to the detention of a person
without trial and, therefore, it incorporates procedural safeguards which
mandate immediacy in terms of time. The significance of Article 22 is that
the representation which has been submitted by detenu must be disposed of at
an early date. The communication of grounds of detention, as soon as may be,
and affording of earliest opportunity to submit a representation against order
of detention will have no Constitutional significance unless detaining
authority deals with representation and communicates its decision with
expedition.
19. The Supreme Court in the case of Jayanarayan Sukul (supra) laid
emphasis on the expeditious consideration of the representation by the
appropriate government. The Supreme Court held that there was an inordinate
delay in considering representation of petitioner. It was observed:
“18. It is established beyond any measure of doubt that the appropriate
authority is bound to consider the representation of the detenu as early as
possible. The appropriate Government itself is bound to consider the
representation as expeditiously as possible. The reason for immediate
consideration of the representation is too obvious to be stressed. The6
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personal liberty of a person is at stake. Any delay would not only be an
irresponsible act on the part of the appropriate authority but also
unconstitutional because the Constitution enshrines the fundamental right of
a detenu to have his representation considered and it is imperative that when
the liberty of a person is in peril immediate action should be taken by the
relevant authorities.
[…]
20. Broadly stated, four principles are to be followed in regard to
representation of detenus. First, the appropriate authority is bound to give
an opportunity to the detenu to make a representation and to consider the
representation of the detenu as early as possible. Secondly, the
consideration of the representation of the detenu by the appropriate
authority is entirely independent of any action by the Advisory Board
including the consideration of the representation of the detenu by the
Advisory Board. Thirdly, there should not be any delay in the matter of
consideration. It is true that no hard and fast rule can be laid down as to the
measure of time taken by the appropriate authority for consideration but it
has to be remembered that the Government has to be vigilant in the
governance of the citizens. A citizen’s right raises a correlative duty of
the State. Fourthly, the appropriate Government is to exercise its opinion
and judgment on the representation before sending the case along with
the detenu’s representation to the Advisory Board.” (emphasis supplied)
20. As has been held by the Supreme Court in Jayanarayan Sukul (supra),
four principles are required to be followed with respect to representation of a
detenu. First, appropriate authority is bound to give an opportunity to detenu
to make a representation and to consider it as early as possible. Secondly,
consideration of detenu‟s representation by appropriate authority is entirely
independent of any action by Advisory Board including consideration of
representation of detenu by Advisory Board. Thirdly, there should not be any
delay in the matter of consideration and it has to be remembered that
Government has to be vigilant in governance of citizens. A citizen‟s right
raises a correlative duty of the State. Fourthly, appropriate Government is to
exercise its opinion and judgment on the representation before sending the
case along with the detenu‟s representation to Advisory Board.
21. In the case of Ankit Ashok Jalan (supra) it was observed by the Supreme
Court that consideration of representation(s) by appropriate Government and
by Advisory Board would always be qualitatively different and the power of
consideration by appropriate Government must be completely independent of
any action by Advisory Board. In the case of Pankaj Kumar Chakrabarty
(supra) it was stated by the Supreme Court that the obligation on the part of
the Government to consider representation would be irrespective of whether
the representation was made before or after the case was referred to the
Advisory Board. Any delay in consideration of representation would not only
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be an irresponsible act on the part of appropriate authority but also
unconstitutional.
22. In Sarabjeet Singh Mokha v. District Magistrate Jabalpur and others
reported in (2021) 20 SCC 98, the Supreme Court has reproduced certain
observations made by the Supreme Court on the consideration of
representation by appropriate government and by the Advisory Board in
Ankit Ashok Jalan (supra), which are reproduced hereunder:
“39. In a recent decision of a three judge Bench of this Court in Ankit Ashok Jalan v.
Union of India51, Justice UU Lalit revisited the body of precedent on the subject and
noticed the qualitative difference between the consideration of a representation by the
appropriate government on the one hand and by the Advisory Board on the other.
Justice UU Lalit, speaking for himself and Justice Indu Malhotra (with Justice Hemant
Gupta dissenting52) observed:
“16. These decisions clearly laid down that the consideration of
representations by the appropriate Government and by the Board would always be
qualitatively different and the power of consideration by the appropriate Government
must be completely independent of any action by the Advisory Board. In para 12 of
the decision in Pankaj Kumar Chakrabarty [Pankaj Kumar Chakrabarty v. State of
W.B., (1969) 3 SCC 400 : (1970) 1 SCR 543] it was stated that the obligation on the
part of the Government to consider representation would be irrespective of whether
the representation was made before or after the case was referred to the Advisory
Board. As stated in para 18, this was stated so, as any delay in consideration of the
representation would not only be an irresponsible act on the part of the appropriate
authority but also unconstitutional. The contingency whether the representations
were received before or after was again considered in para 29 of the decision in
Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC
(Cri) 816] .”
Justice UU Lalit categorized the different stages for when a representation is
received and disposed, with the underlying principle that the representation must be
expeditiously disposed of, at every stage:
“17. In terms of these principles, the matter of consideration of representation in the
context of reference to the Advisory Board, can be put in the following four
categories:
17.1. If the representation is received well before the reference is made to the
Advisory Board and can be considered by the appropriate Government, the
representation must be considered with expedition. Thereafter the representation
along with the decision taken on the representation shall be forwarded to and must
form part of the documents to be placed before the Advisory Board.
17.2. If the representation is received just before the reference is made to the
Advisory Board and there is not sufficient time to decide the representation, in terms
of law laid down in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970)
1 SCC 219 : 1970 SCC (Cri) 92] and Haradhan Saha [Haradhan Saha v. State of
W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] the representation must be decided
first and thereafter the representation and the decision must be sent to the Advisory
Board. This is premised on the principle that the consideration by the appropriate
Government is completely independent and also that there ought not to be any delay
in consideration of the representation.
17.3. If the representation is received after the reference is made but before the
matter is decided by the Advisory Board, according to the principles laid down in
Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC
(Cri) 816], the representation must be decided. The decision as well as the
representation must thereafter be immediately sent to the Advisory Board.
17.4. If the representation is received after the decision of the Advisory Board, the
decisions are clear that in such cases there is no requirement to send the
representation to the Advisory Board. The representation in such cases must be
considered with expedition.
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23. In the case in hand, it is an admitted position that representation had
been made by detenu through his mother to respondent no.2, which,
according to respondent no.2, was rejected. However, there is nothing on
record to show that rejection of representation has been forthwith
communicated to detenu/petitioner inasmuch as rejection of representation,
according to counsel for petitioner, has to come fore only when respondent
no.2 filed counter affidavit. It is pertinent to mention here that it is not only
consideration and/or rejection of representation of detenu, but it is important
to communicate such a rejection with reasons to detenu/petitioner. In the
event there is any delay in supplying/ communicating the order of rejection of
the representation to the detenu/ petitioner, it would also cause prejudice to
the detenu as he would be deprived of his right to seek remedy vis-à-vis the
order of rejection, which may prove fatal to the order of preventive detention.
Thus, it is fundamental to interfere with the order of detention in view of
failure of respondents to communicate rejection of representation to
detenu/petitioner inasmuch as non-communication and/or delay in
communication of rejection of representation to detenu/petitioner forms a part
of infraction on detenu‟s constitutional right under Article 22(4) of the
Constitution of India. Reference is made to Biren Dutta v. Chief
Commissioner of Tripura, AIR 1965 SC 596; State of Punjab v. Sukhpal
Singh, (1990) 1 SCC 35; and Khaja Bilal Ahmed v. State of Telangana,
2020 (13) SCC 596.
24. For the reasons discussed above, the detention Order no. 07/DMP/PSA/24
dated 10.01.2024, passed by District Magistrate, Pulwama, is quashed.
Respondents, including Superintendent Jail concerned, are directed to release the
detenu forthwith, provided he is not required in any other case.
25. Disposed of.
26. Registry to return detention record to learned counsel for respondents.
(Vinod Chatterji Koul)
Judge
Srinagar
01.08.2025
(Qazi Amjad, Secy)
QAZI AMJAD YOUSUF
I attest to the accuracy and
authenticity of this document 9
04.08.2025 14:29 HCP No. 26/2024