Jammu & Kashmir High Court – Srinagar Bench
Union Territory Of J&K Through … vs Arif Aijaz Shahri S/O Aijaz Ahmad Shahri … on 22 August, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 11.08.2025
Pronounced on:22.08.2025
CJ Court
LPA No.190/2024
1. Union Territory of J&K through Financial
Commissioner (Additional Chief
Secretary) to Govt. Home Department,
J&K Govt. Civil Secretariat Srinagar/
Jammu.
2. District Magistrate, Bandipora.
3. Superintendent of Police, Bandipora.
4. Superintendent, District Jail, Kupwara.
...APPELLANTS(S)
Through: - Mr. Jehangir Ahmad Dar, GA.
Vs.
Arif Aijaz Shahri S/o Aijaz Ahmad Shahri R/o
Nadihal Tehsil and District Bandipora.
...RESPONDENT(S)
Through: - Mr. Mir Majid Bashir, Advocate.
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
OSWAL ‘J’
1) The respondent came to be detained by the appellant
No.2 (for short “the Detaining Authority) in terms of order
dated 23.08.2023 by invoking powers in terms of clause (a) of
Section 8 of the J&K Public Safety Act (for short “the Act”).
The order of detention came to be impugned by the
respondent through the medium of HCP No.109/2023 on
various grounds including that the respondent had submitted
LPA No.190/2024 1|Page
the representation dated 04.09.2023 through his wife to
appellants No.1 and 2 but the same was not considered. It
was also contended by the respondent that the constitutional
as well as statutory safeguards as provided under the
Constitution of India and the Act respectively were flagrantly
violated by the appellants.
2) The appellants, in their reply to the writ petition, filed by
the respondents, stated that the respondent has been
detained in terms of impugned order issued by the Detaining
Authority and all the statutory requirements and
constitutional guarantees have been fulfilled and complied
with by the Detaining Authority. The grounds of detention,
order of detention and the entire material relied upon by the
Detaining Authority came to be furnished to the detenue well
within the statutory period provided under Section 13 of the
Act. The warrant was executed by the appellants on
24.08.2023 and the respondent was handed over to
Superintendent, District Jail, Kupwara, for lodgment. The
contents of the detain order/warrant and the grounds of
detention were read over and explained to the detenue in the
language which he fully understood and in lieu whereof, he
subscribed his signatures on the execution report/order. He
was also informed about his right of making representation
to the Detaining Authority or to the Government but he didn’t
choose to do so. It was further averred that in terms of Section
LPA No. 190/2024 2|Page
15 of the Act, the case of the respondent was referred to the
Advisory Board for its opinion and the Advisory Board, after
considering the material placed before it, opined that there is
sufficient cause for detention of the respondent and after
opinion of the Advisory Board, the Government, vide order
dated 06.10.2023, confirmed the order of detention.
3) The learned Writ Court vide its order dated 01.04.2024,
allowed the petition preferred by the respondent and, while
quashing the order of detention, directed the appellants to
release the respondent from the preventive detention.
4) Aggrieved of the order dated 01.04.2024, the appellants
have assailed the same on the ground that the learned Writ
Court has wrongly mentioned in para (13) of the impugned
order that the Detaining Authority did not exhibit its
awareness about discharge of the respondent in FIR
No.67/2022 and that the learned Writ Court has not rightly
considered the stand of the appellants.
5) Mr. Jehangir Ahmad Dar, learned counsel for the
appellants has argued that the learned Writ Court, on wrong
premises, has quashed the detention order. It has been
contended that the expression “State” used in the Public
Safety act would include “Union Territory of J&K” as well.
6) Per contra, Mr. Mir Majid Bashir, learned counsel for the
respondent, has argued that notwithstanding the grounds
LPA No. 190/2024 3|Page
that weighed with the learned Writ Court for the purpose of
quashing of order of detention, the respondent could not have
been detained on the basis of the activities which were stale
in nature and further the respondent was detained only in
view of Shri Amarnathji Yatra, 2023 and once the
contingency, which prompted the appellants to detain the
respondent was over, the appellants ought to have withdrawn
the detention order. He has further argued that the
representation submitted by the respondent through his wife
was never decided by the appellants.
7) Heard and perused the record. 8) We are in perfect agreement with the submission made
by the learned counsel for the appellants that the learned Writ
Court while quashing the order of detention has wrongly
stated in the order impugned in this appeal that the Detaining
Authority was not aware about discharge of the respondent
as at page No.2 of the grounds of detention, it is specifically
stated by appellant No.2 that the respondent was discharged
in FIR No.67/2022 under Section 13 UAP Act, 4-B Explosive
Substance Act of P/S Bandipora.
9) So far as other contention of the appellants that the
expression “State” used in the Act would include the
expression “UT of J&K” as well, is concerned, a Coordinate
Bench of this court has already held that the expression
LPA No. 190/2024 4|Page
“State” used in the Public Safety Act includes “Union Territory
of J&K”. Therefore, the learned Writ Court was not correct in
quashing the order of detention on this ground as well.
10) Be that as it may, even on other grounds, the detention
order passed by appellant No.2 is not sustainable in the eyes
of law. It is evident that the respondent was detained on
account of Shri Amarnathji Yatra, 2023 and upcoming
elections. Since the respondent also stood discharged in FIR
No.67/2022 under Section 13 UAP Act, 4-B Explosive
Substance Act of P/S Bandipora, and no other specific illegal
activity has been mentioned in the grounds of detention, the
respondent could not have been detained on vague grounds.
A Coordinate Bench of this Court in the case titled “Imran
Rashid Rather vs. UT of J&K” 2024 LiveLaw (JKL) 351 has,
while deliberating upon the effect of vagueness of the grounds
of detention on the subjective satisfaction of the detaining
authority, observed as under:-
“Therefore, this Court holds that vague and non-specific
grounds of detention firstly, violates the fundamental right to
life and personal liberty of the detenue under Article 21 of the
constitution as it summarily curtails the liberty of the citizen
based on the subjective satisfaction of the executive which is
an exceptional power as against the general law relating to
arrest and detention. Secondly, it deprives the detenue of
giving a specific rebuttal to the grounds of detention which
may satisfy the detaining authority or the Government that his
detention is unlawful and compels him to answer the
grounds of detention as “it is incorrect” or “it is false” etc.
Thirdly, vague and generalised grounds in the order of
detention, smacks of arbitrariness on the part of the
detaining authority rendering the subjective satisfaction
arrived at as violative of Article 14 of the constitution and
fourthly, vague and non-specific grounds raise the
LPA No. 190/2024 5|Page
impression that the same has been done deliberately in order
to deprive the detenu of giving a precise rebuttal. Malafide in
fact may be difficult to establish as they must be pleaded with
specific facts, but the lack of bonafides 1State of Bihar Vs.
P.P. Sharma,1992 Supp(1) SCC 222, paragraph 49 – State of
Punjab Vs. Gurdial Singh, (1980) 2 SCC 471, paragraph 9 –
Pooja Batra Vs. Union of India and others, (2009) 5 SCC 296,
paragraphs 18,40 and 41 may be presumed where the
executive act results in the deprivation of personal liberty
from a detention order based on vague grounds. In such
cases, the lack of bonafides is to be presumed due to a
cavalier or casual exercise of the authority to detain the
citizen without any specific ill will or personal animosity. The
lack of bonafides is on account of failure to take due care and
act without introspection, blindly on the report of the SP
without insisting on supporting material which justifies the
deprivation of liberty.”
11) From the aforesaid analysis of law, it is manifest that
the vagueness of grounds of detention strikes at the root of
the subjective satisfaction of the detaining authority thereby
vitiating the order of detention.
12) Secondly, we find that the appellants, in their response,
are silent in respect of the representation submitted by the
respondent through his wife and rather it is the positive stand
of the appellants that no representation was submitted by the
respondent against his detention. Once the representation is
submitted to the Detaining Authority and to the Government,
it is their bounden duty not only to decide the said
representation as expeditiously as possible but also to
communicate decision thereupon to the detenue. The record
depicts that the representation dated 04.09.2023 submitted
by the respondent through his wife was decided by the
Detaining Authority on 12.10.2023 after receiving the
LPA No. 190/2024 6|Page
comments dated 11.09.2023 from the respondent No.4. Thus,
there is delay on the part of appellant No.2 in consideration
of the representation. In Sarabjeet Singh Mokha vs. District
Magistrate, Jabalpur and others“(2021) 20 SCC 98, the
consideration of representation after a delay of one and a half
month from the date of receipt of representation was held to
be violative of the right of the detenue of consideration of his
representation without delay.
13) After examining the impugned judgment, we find that
the learned Writ Court has chosen a wrong path to reach the
correct destination and, as such, without subscribing to the
view taken by the learned Writ Court, the decision of the
learned Writ Court cannot be disturbed at this stage,
particularly when the respondent has been set at liberty.
14) Viewed thus, there is no merit in this appeal and the
same is dismissed accordingly.
15) The record be returned to learned counsel for the
appellants.
(RAJNESH OSWAL) (ARUN PALLI)
JUDGE CHIEF JUSTICE
Srinagar
22.08.2025
"Bhat Altaf"
Whether the Judgment is speaking: Yes
Whether the judgment is reportable: No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document
LPA No. 190/2024 7|Page
22.08.2025 12:05