Jammu & Kashmir High Court
Asif Mehmood vs Ut Of Jammu & Kashmir Through on 26 August, 2025
2025:JKLHC-JMU:2486
Serial No. 88
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 14.08.2025
Pronounced on: 26.08.2025
HCP No. 141/2024
Asif Mehmood, Age 31 years .....Petitioner(s)
S/O Mohd. Akram
R/O Ward No.7, Manyal,
Tehsil Thanamandi , District Rajouri
Through mother Billo Begum
Through: Mr. Muzaffar Iqbal Khan, Advocate
Mr. Mazher Ali Khan, Advocate.
Vs
1. UT of Jammu & Kashmir through
Principal Secretary, (Home),
Civil Secretariat, Jammu.
2. District Magistrate, Rajouri.
3. Superintendent, District Jail, Rajouri.
..... Respondent(s)
Through: Mr. Dewakar Sharma, Dy. AG.
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. Petitioner-Asif Mehmood, S/O Mohd. Akram R/O Ward No.7,
Manyal, Tehsil Thanamandi, District Rajouri (for short ‘the detenue’)
challenged the detention Order No.DMR/INDEX/06 of 2024 dated 22.10.2024
(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 prejudicial to the maintenance of ‘public order’.
02. Petitioner contends that the Detaining Authority passed the impugned
detention order without there being due application of mind as the impugned
detention order shows that ‘with a view to prevent detenue from acting in any
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manner which is highly prejudicial to the maintenance of public order, the
detenue is taken under preventive detention’ whereas in the grounds of
detention, at one place, it is mentioned that the detenue is involved in anti-
national activities which are highly prejudicial to the maintenance of the
‘security of State’, which reflects non application of mind on the part of the
detaining authority because detention order is to be issued either for law and
order or for security of the State but not under both the heads; that the detaining
authority has not informed the detenue about his right to file representation to
the detaining authority and also the time frame within which such a
representation must be filed to the detaining authority against his detention
order, which incapacitated him to file effective and meaningful representation
against his detention order; that the allegations against the petitioner are false
and the sponsoring agency suppressed the vital fact that the petitioner got
released in case FIR No.05/2009 and the second FIR No.190/2019 registered
against him at Police Station, Thanamandi relates to matrimonial dispute and the
detaining authority made these two FIRs as the basis for passing the impugned
detention order, thus, vitiating the impugned detention order.
03. The respondents have contested the writ petition by filing counter
affidavit of the detaining authority. In the counter affidavit, it has been
submitted that the impugned order of detention has been passed by the detaining
authority after carefully analyzing the dossier dated 20.07.2024 submitted by
SSP Rajouri; that the detention order is based on subjective satisfaction of the
detaining authority and the grounds of detention clearly reflect the application of
mind; that the detaining authority was satisfied that the activities of the detenue
were prejudicial to the security of the State and that there was every likelihood
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of the detenue continuing with such activities if he be let free; that the
respondents have supplied all the material to the detenue and have also read out
and explained the contents thereof in the language he understands; that he was
also informed about his right to make a representation to the Government as
well as detaining authority; that the respondents, in order to lend support to their
contentions, have produced the detention record.
04. Heard leaned counsel for the parties at length, perused the record and
considered the matter.
05. The detention record, as produced, reveals that the detenue was involved
in following cases registered at Police Station Thanamandi:-
1) FIR No190/2019 U/Sec 498-A/323/109 IPC
2) FIR No. 5/2009 U/Secs 122/123/120 B/121 RPC.
Involvement of the detenue in the aforementioned cases appears to have heavily
weighed with the detaining authority, while passing impugned detention order.
06. Although detenue has raised many grounds for assailing the impugned
order of detention, yet, during the course of arguments, his counsel restricted his
arguments to the contentions that:
i) That the detenue was not informed about his right to make representation
to the detaining authority, as also no mention of time limit in the
detention order within which detentue can make his representation to the
detaining authority as well as the Government;
ii) that the stale cases/FIRs of the year 2009 and 2019 are made basis for
passing the detention order which has no proximate link;
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iii) that the grounds of detention are replica of dossier.
iv) That non application of mind is writ large in the preventive detention of
the petitioner as detention order cannot be passed on both the grounds
viz. ‘maintenance of public order’ as well as ‘security of state’ at the
same time.
07. The first ground as argued is, that the detenue was not informed about
his right to make representation within stipulated time before the detaining
authority, thereby violating his statutory and constitutional rights. It is
translucently clear from perusal of the impugned detention order that the
Detaining Authority has neither communicated to the detenue his right to make
representation to the detaining authority as also the time limit, within which, he
could make such 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 case, 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.”
08. 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
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should have communicated to the detenue in the detention order, 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.
09. So far as the second ground that stale cases are shown to pass detention
order against the petitioner is concerned, the material placed before the detaining
authority by the Police was his alleged involvement in two criminal cases,
registered against the detenue at Police Station Thanamandi in the years 2009
and 2019. The reliance on the 15 year old case of 2009, in which the detenue
was already exonerated and another case pertaining to matrimonial dispute of
the year 2019 is not permissible being stale, irrelevant snapping any proximate
and live link. (See: Sama Aruna v. State of Telangana & Ors (2018) 12 SCC
150).
10. The third 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 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
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
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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.
11. The law is well settled and is no longer res integra that the expressions
‘law and order’, ‘public order’ and ‘security of State’ are distinct concepts,
though not always separate. While every breach of peace may amount of
disturbance of law and order, every such breach does not amount to disturbance
of public order and every public disorder may not prejudicially affect the
‘security of the State’.(See: G M Shah v. State of J&K, 1980 (AIR) SC 494).
12. In the present case, detaining authority has made use of both expressions
‘prejudicial to maintenance of public order’ as well as ‘prejudicial to security of
State’. Impugned detention order, made on the basis of ground of detention
using both expressions by the detaining authority to place detenue under
preventive detention, in view of well settled law is held illegal and consequently
impugned order is vitiated.
13. In the face of the aforestated 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.
14. 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,
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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:
“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.”
15. 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; secondly, stale cases referred
having no proximate link; thirdly, non application of mind by the detaining
authority, in as much as the grounds of detention are almost xerox copy of the
police dossier, and lastly, impugned order is vitiated as detaining authority has
made use both the expressions ‘prejudicial to maintenance of public order’ as
well as prejudicial to security of State, it can safely be held that the detenue was
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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.
16. Viewed thus, the petition is allowed and the impugned detention
Order No.DMR/INDEX/06 of 2024 dated 22.10.2024, passed by respondent
No. 2, District Magistrate, Rajouri, is hereby quashed. The detenue-Asif
Mehmood, S/O Mohd. Akram R/O Ward No.7, Manyal, Tehsil Thanamandi,
District Rajouri, is directed to be released from the preventive custody forthwith,
if not required in any other case(s). No costs.
17. The record of detention be returned to the respondents through their
counsel.
18. Disposed of, accordingly, along with connected application(s).
(M A CHOWDHARY)
JUDGE
JAMMU
26.08.2025
Raj Kumar
Whether the order is speaking? :Yes/No.
Whether the order is reportable? : Yes/No.