Jammu & Kashmir High Court
Reserved On: 14.08.2025 vs The Union Territory Of Jammu & Kashmir on 21 August, 2025
2025:JKLHC-JMU:2447
Sr. No. 61
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.158/2024
Reserved on: 14.08.2025
Pronounced on:21.08.2025
Abdul Qayoom, Age 45 years
S/O Sher Mohd,
R/O Village Jajote Kandu,
Tehsil Qila Darhal, District Rajouri,
Through son, Zahid Hussain
....Petitioner(s)
Through :- Mr. M. A. Bhat, Advocate.
V/S
1. The Union Territory of Jammu & Kashmir
Through Principal Secretary to Govt.,
Home Department, Civil Secretariat, Jammu
2. District Magistrate, Rajouri
3. Senior Superintendent of Police, Rajouri.
4. Superintendent, District Jail, Kishtwar.
....Respondent(s)
Through :- Mr. Dewakar Sharma, Dy. AG
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner namely Abdul Qayoom S/O Sher Mohd, R/O Village Jajote
Kandu, Tehsil Qila Darhal, District Rajouri (for short ‘the detenue’) has
challenged the detention Order No.DMR/INDEX/13 of 2024 dated 15.11.2024
(impugned order), issued by respondent No.2, District Magistrate, Rajouri
(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 which is highly prejudicial to the maintenance of ‘public order’.
2 HCP No.158/20242025:JKLHC-JMU:2447
2. Petitioner has raised many grounds to assail the impugned order. It is his
contention that Detaining Authority has passed the detention order mechanically
without due application of mind; that the fate of the representation submitted by
the petitioner was never made known to the petitioner; that two remote FIRs of
the year 2011 and 2014 and other two FIRs regarding family disputes were made
the basis for passing the detention order, besides some vague complaints; that the
petitioner was not informed about his right to file representation to the detaining
authority as also the time frame within which the said representation must be
filed; that whole of the material on which the detention order was passed was
neither supplied to the detenue nor explained to him in the language he
understands; that the grounds of detention are replica of the police dossier.
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/surrendered militant and criminal activities of the petitioner have created
terror and law and order problem in the area and are causing grave threat to the
maintenance of public order in the whole District in general and Tehsil Qila
Darhal in particular, which made it imperative for detaining authority to detain
him under preventive detention; that the detention warrant along with grounds of
detention was properly executed through PSI Arun Kumar of P/S Nowshera
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. as well as detaining authority
3 HCP No.158/20242025:JKLHC-JMU:2447
against the detention order, if he so desires; that the representation filed on
behalf of the petitioner was duly considered and rejected and result whereof was
duly conveyed to the petitioner through the jail authorities; 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. 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 lend support the contentions
raised in the counter affidavit.
4. Heard learned counsel for the parties at length, perused the detention
record and considered the matter.
5. The detention record, as produced, reveals that the detenue was involved
in following cases registered at Police Station Nowshera:-
1) FIR No. 43/2011; U/S 2/3 E&IMCO
2) FIR No. 183/2014; U/S 121/122 RPC,
7/25 Indian Arms Act, 2/3 E&IMCO
3) FIR No.157/2023; U/Ss 452/323/354/34 IPC
4) FIR No.72/2024; U/Ss 341/323/504/506/147 IPC
Besides above FIRs, following four complaints are also registered against the
petitioner at P/S Nowshera:
i) Three Complaint U/S 107/110 CRPC
ii) Complaint U/S 126/136 BNSS
4 HCP No.158/20242025:JKLHC-JMU:2447Involvement of the detenue in the aforementioned cases appears to have heavily
weighed with the detaining authority, while passing impugned detention order.
6. 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 fate of the representation submitted by the petitioner to the
respondents was never communicated to him;
(II) That the petitioner was not informed that he has a right to file
representation to the detaining authority and also time frame is not
specified in the detention order within which he can approach the
detaining authority;
(III) that the entire material forming the basis of the grounds of detention
was neither supplied nor explained to him in the language he
understands;
(IV) That grounds of detention are replica of police dossier;
7. The first ground projected by learned counsel for the petitioner is that the
representation of the petitioner, against the impugned order of detention, has not
been considered by the respondents, thereby, violating his statutory and
constitutional rights. Even, the outcome of the said representation was not
informed to the petitioner. In support of his contention, the petitioner has placed
on record a copy of the representation dated 28.11.2024. He has also placed on
record postal receipt dated 29.11.2024 (Annexure-VI), which indicates that the
representation has been sent to the Additional Chief Secretary to Government,
5 HCP No.158/20242025:JKLHC-JMU:2447
Home Department, Jammu as well as Chairman, State Advisory Board under
J&K Public Safety Act, Jammu.
8. A perusal of the detention record reveals that the respondents have
received the representation of the petitioner. This is evident from communication
dated 04.12.2024, addressed by Deputy Secretary to Government to the Principal
Secretary to the Chairman, Advisory Board, PSA/PIT NDPS Acts, Jammu. The
detention record suggests that the said representation has been considered by the
Government. The record shows that report regarding representation of the
petitioner was called by the Government, whereafter it has been rejected. This is
evident from communication dated 23.12.2024 addressed by Home Department
of the Government to the District Magistrate, Rajouri.
9. There is nothing on record to show that the order rejecting representation
was conveyed to the petitioner. The communication dated 23.12.2024 (supra) is
an inter-departmental communication between Home Department and the
District Magistrate. It is not forth coming from the record produced by the
respondents as to whether the result of the representation has been conveyed to
the petitioner. A further perusal of communication (supra) would show that the
Superintendent District Jail, Kishtwar, was requested to inform the detenue about
the disposal of the representation. However, when enquired whether any
supporting document is placed on record, which would show that the result of
the representation was communicated to the petitioner, this court has drawn a
blank from the respondents in this regard. Since the petitioner has all along
alleged that he was not informed the outcome of the representation submitted by
him, the respondents ought to have placed on record, supporting material in this
6 HCP No.158/20242025:JKLHC-JMU:2447
regard which may include receipt of communicating the result of the
representation to the petitioner, which is conspicuously absent in the present
case.
10. The Supreme Court in the case of Sarabjeet Singh Mokha vs. District
Magistrate, Jabalpur & others” (2021) 20 SCC 98, while dealing with the
effect of failure to communicate the result of the representation has held that
failure in timely communication of the rejection of the representation is a
relevant factor for determining the delay that the detenue is protected
under Article 22(5). It has been further held that failure of the government to
communicate rejection of detenue’s representation in a time bound manner is
sufficient to vitiate the detention order.
11. In the said case, the Supreme Court has further held that the delay in
decision on the representation of the detenue amounts to an infringement of a
valuable right. This right is available to a detenue in terms of provisions
contained in Section 13 of the Jammu & Kashmir Public Safety Act, which
makes it obligatory on the detaining authority to communicate to the detenue the
grounds on which the order of detention has been made, within a maximum
period of ten days from the date of detention and to afford him the earliest
opportunity of making representation against the order of detention. The purpose
of furnishing the grounds of detention within a maximum period of ten days is to
enable a detenue to make a representation against the order of detention at the
earliest opportunity. Thus, a duty is cast upon the detaining authority or the
government to consider the said representation at the earliest opportunity. Failure
to decide the representation of a detenue within a reasonable time in an
7 HCP No.158/20242025:JKLHC-JMU:2447
expeditious manner, strikes at the valuable right of a detenue emanating from the
provisions of Section 13 of the Jammu & Kashmir Public Safety Act.
12. In the present case, it is pellucid that respondents have failed to
communicate the petitioner the result of the representation, as is discussed in the
preceding paragraphs. This breach in the statutory safeguard, is sufficient to
vitiate the impugned order of detention.
13. Second ground as argued is that the detenue was not informed about his
right to make representation before the detaining authority thereby violating his
statutory and constitutional rights. It is translucently clear from a perusal of the
impugned detention order that the Detaining Authority has not communicated to
the detenue that he can make representation to the detaining authority against the
impugned detention order for its revocation. The above fact of not
communicating the detenue of his right to approach the detaining authority itself
for revocation of the impugned detention order is conspicuously missing, on a
bare reading of the communication No.DMR/JC/2024-25/2366-66 dated
15.11.2024 issued by the District Magistrate, Rajouri to the detenue, which
shows that ‘the detenue may make representation against the detention order
mentioned above issued by the undersigned to the Government, if so desired.
14. 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
case, wherein the time limit for making a representation is of
8 HCP No.158/20242025:JKLHC-JMU:2447essence 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.”
15. 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, at the first hand, that he has right to file
representation before the detaining authority as well and secondly, the detaining
authority should have informed the detenue 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. It is 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. 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.
16. The third ground urged by the learned counsel for the detenue that the
entire material forming the basis of the grounds of detention was neither supplied
nor explained to him in the language he understands, has been contradicted by
respondent No.2 in its affidavit. The detention record produced by the
respondents contains report of execution as also receipt executed by the detenue.
According to the receipt, the detenue has received a total of 63 leaves comprising
9 HCP No.158/20242025:JKLHC-JMU:2447
copy of detention order, and other documents. Since the petitioner has denied
that entire material has been supplied and explained to him in the language he
understands, the respondents ought to have filed affidavit of executing officer in
this regard, which on the perusal of the record would show that same has not
been done, thus vitiating the impugned detention order. It can, thus, safely be
assumed that all the material, including complaints U/S 107/110 CrPC, was not
supplied to the petitioner on the basis of which detention order is passed.
17. Hon’ble the Supreme Court of India in a case titled ‘State of
Maharashtra & Ors. v. Santosh Shanker Acharya‘ reported as AIR 2000 SC
2504 quashed the detention order on the ground, that the detenue was not
supplied the copies of material, based on which detention order was passed,
which amounted to denial of representation to the detenue and infraction of a
valuable constitutional right guaranteed to the detenue under Article 22 (5) of the
Constitution of India. A Co-ordinate Bench of this Court at Srinagar in a case
titled “Hilal Ahmad Khuroo Vs. Union Territory of J&K & Ors. [WP (Crl.)
No. 80/2022, decided on 10.08.2022] has held, that respondents are duty bound
to provide to the petitioner/detenue the material as regards the proceedings u/s
107 of the Cr.P.C and non-supply thereof renders the detention order illegal and
unsustainable. Ratio of the judgments (supra) and the principle of law deduced
there from are squarely applicable to the facts of the case in hand. In the instant
case, on perusal of the detention record, it is discernable, that the essential
material/record as regards to the proceedings u/s 107 of Cr.P.C against petitioner
forming the edifice for issuance of impugned detention order has not been
supplied to the detenue, therefore, the petitioner/detenue’s constitutional right
2025:JKLHC-JMU:2447
10 HCP No.158/2024
guaranteed to him under Article 22(5) Constitution of India r/w Section 13 of
J&K PSA 1978 has been infringed/violated, which renders the impugned
detention order illegal and legally unsustainable.
18. The last ground, which has been urged by the learned counsel for the
detenue 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 photo-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
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.
19. 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
2025:JKLHC-JMU:2447
11 HCP No.158/2024
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:
“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.”
20. Having regard to the facts, firstly, that not informing the detenue that he
can make representation to the detaining authority, against the detention order
besides time frame not specified in the detention order, within which detenue can
file representation against the detention order and secondly, non communication
of the result of the representation to the detenue; thirdly, non supply of whole of
the material which incapacitated the petitioner to file effective and meaningful
representation to the detaining authority as well as government; fourthly, non
application of mind by the detaining authority, in as much as the grounds of
detention are almost xerox copy of the police dossier, it can safely be held that
2025:JKLHC-JMU:2447
12 HCP No.158/2024
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 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 render it unsustainable and liable
to be quashed.
21. Viewed thus, the petition is allowed and the impugned detention Order
No. DMR/INDEX/13 of 2024 dated 15.11.2024, passed by respondent No. 2,
District Magistrate, Rajouri, is hereby quashed. The detenue- Abdul Qayoom
S/O Sher Mohd, R/O Village Jajote Kandu, Tehsil Qila Darhal, District Rajouri
is directed to be released from the preventive custody forthwith, if not required
in any other case(s). No costs.
22. The record of detention be returned to the respondents through their
counsel.
23. Disposed of, accordingly, along with connected application(s).
(MA CHOWDHARY)
Jammu: JUDGE
21.08.2025
Raj Kumar
Whether the order is speaking? Yes/No.
Whether the order is reportable? Yes/No.