Jammu & Kashmir High Court – Srinagar Bench
Bilal Ahmad Bhat Aged 24 Years S/O Gh Nabi … 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. 207/2024
Reserved on: 17.07.2025
Pronounced on: 01.08.2025
Bilal Ahmad Bhat aged 24 years S/o Gh Nabi Bhat R/o Nagam Kokernag
District Anantnag through his mother Mumtaza aged 61 years.
....... Petitioner(s)
Through: Mr. Wajid Haseeb, Advocate
Versus
1. Union Territory of J&K through Additional Chief Secretary, Home
Department , J&K Govt. Civil Sectt. Srinagar/Jammu
2. District Magistrate, Anantang
3. Sr. Superintendent of Police, Anantnag
....Respondent(s)
Through: Mr. Jahingeer A Dar, GA
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition, Order no. 11/DMA/
PSA/DET/2024 dated 20.04.2024 (impugned detention order) passed by
District Magistrate, Anantnag – respondent no.2 herein (for short
„detailing authority‟) whereby detenu, namely, Bilal Ahmad Bhat S/o Gh
Nabi Bhat R/o Nagam Kokernag District Anantnag, has been placed under
preventive detention with a view to prevent him from acting in any
manner prejudicial to the security of the State/UT of J&K, is sought to
be quashed and the detenu set at liberty on the grounds made mention of
therein.
2. Respondents have filed reply affidavit, insisting therein that the
activities indulged in by detenu are highly prejudicial to the security of
the State/UT of J&K 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
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relied upon in the grounds of detention have been refuted. It is insisted
that all the relevant material, which has been relied upon by the detaining
authority, was provided to the detenu at the time of execution of warrant.
3. 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.
4. The case set up by the petitioner in the petition is that the detenu was
arrested in the month of April, 2024 in connection with case FIR
No.219/2022 under Section 120-B, 130 IPC, 18, 39 UAP Act by Police
Station Anantnag, inasmuch as the allegations mentioned in the grounds of
detention have no nexus with the detenu and the detention order seems to
have been passed against the wrong person as the detenu does not know, nor
he has associated himself with the person or organization as mentioned in
the grounds of detention, inasmuch as the allegations made in the grounds of
detention are vague, non -existent and no prudent man can make a
representation against such allegations and passing of detention on such
grounds is unjustified and unreasonable. It is further stated that the detenu
was already arrested as per the grounds of detention in case FIR No.
219/2022 which involve Commission of Offence under Chapter IV & VI of
Unlawful Activities Act wherein the grant of bail is restricted in terms of
Section 43 D of ULA(P) Act, however, the detenu was released on bond due
to insufficient evidence and admittedly the detenu even as the grounds of
detention has remained silent after 2023, inasmuch as the last alleged
activity attributed to the detenu has taken place in the year 2022 and
thereafter no fresh activity has been attributed to the detenu as such, the
allegation on which the detention order is based are stale and lack proximity.
The delay of more than two years between the last alleged activity and the
order of detention has snapped the proximity of the requirement of passing
of detention order and on this ground alone the detention order is unjustified
hence deserves to be quashed. It is also stated that the detaining authority
has not prepared the grounds of detention by itself which is pre-requisite for
it before passing any detention order and the detaining authority has relied
only on the police dossier and has not perused any material relating to the
case, inasmuch as the detenu on post detention has submitted a
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representation before the respondent no. 2, however, the same was not
considered in due course of law nor the material as requested was furnished
to the detenu.
5. 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 the detenu being prejudicial to
security of the State.
6. The submission that has been strenuously urged by learned counsel
for detenu and reiterated in the Rejoinder filed by him, is that although
representation filed by detenu post detention, which according to
respondents has been rejected vide no.Home/PB-V/294/2024 (7459850)
dated 13.09.2024, yet the rejection order has neither been communicated
to him nor appears to have been sent to Advisory Board, which vitiates
impugned order of detention.
7. In the context of Reply filed by respondents, it is worth to go
through detention record, more particularly Report of Advisory Board.
Perusal of Report of Advisory Board dated 14.05.2024, interestingly,
mentions, “No representation seems to have been made by the Detenue as
no such representation is lying on the material placed before us”.
8. 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
Jayanarayan Sukul v. State of W.B. (1970) 1 SCC 219; Pankaj Kumar
Chakraborty v. State of W.B. (1969) 3 SCC; Frances Corallie Mullin v.
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W.C.Khambra (1980) 2 SCC 275; and Ankit Ashok Jalan v. Union of
India and others, (2020) 16 SCC 127.
9. 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 of 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.
10. The provisions of J&K Public Safety Act subscribe to the mandate of
Article 22(5). Section 13 thereof 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
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been made, and shall afford him the earliest opportunity of making a
representation, against the order to the Government.
11. 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.
12. 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:
“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.”
13. 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.
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14. 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.
15. 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. The 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)
16. 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
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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.
17. 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 be an irresponsible act on the part of
appropriate authority but also unconstitutional.
18. 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 the7
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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.
19. In the case in hand, it is an admitted position that representation had
been made by detenu through his mother, which, according to respondents,
was rejected. The detention record includes report of the Advisory Board. It
mentions that although detenu was informed about his right of making
representation against his detention to detaining authority as also
government, but no such representation seems to have been made by detenu
because no such representation was lying on the material before the
Advisory Board. This would show and suggest that respondents have not
placed copy of representation as also decision taken by detaining authority
thereon before the Advisory Board as was required of respondents under and
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in terms of Section 15 of J&K Public Safety Act. In that view of matter,
impugned order of detention is vitiated.
20. It may be appropriate to mention that perusal of grounds of detention
reveals that grounds of detention are vague and ambiguous and do not refer
to any date, month or year of the activities, which have been attributed to
detenu. Detention in preventive custody on the basis of such vague and
ambiguous grounds cannot be justified. It may not be out of place to
mention here that preventive detention is largely precautionary and is based
on suspicion. The Court is ill-equipped to investigate into circumstances of
suspicion on which such anticipatory action must be largely based. The
nature of the proceeding is incapable of objective assessment. The matters to
be considered by detaining authority are whether the person concerned,
having regard to his past conduct judged in light of surrounding
circumstances and other relevant material, is likely to act in a prejudicial
manner as contemplated by the provisions of the law and, if so, whether it is
necessary to detain him with a view to preventing him from so acting. These
are not the matters susceptible of objective determination, and they could
not have been intended to be judged by objective standards. They are
essentially the matters to be administratively determined for purpose of
taking administrative action. Their determination is, therefore, deliberately
and advisedly left by the Legislature to the subjective satisfaction of
detaining authority which, by reason of its special position, experience and
expertise, would be best suited to decide them. Thus, the Constitutional
imperatives of Article 22(5) and the dual obligation imposed on the
authority making the order of preventive detention, are twofold: (1) The
detaining authority must, as soon as may be, i.e. as soon as practicable, after
the detention order is passed, communicate to the detenu the grounds on
which the order of detention has been made, and (2) the detaining authority
must afford the detenu the earliest opportunity of making the representation
against the order of detention, i.e. to be furnished with sufficient particulars
to enable him to make a representation which, on being considered, may
obtain relief to him. The inclusion of an irrelevant or non-existent ground,
among other relevant grounds, is an infringement of the first of the rights
and the inclusion of an obscure or vague ground, among other clear and
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definite grounds, is an infringement of the second of the rights. In either
case there is an invasion of the constitutional rights of the detenu entitling
him to approach the Court for relief. The reason why the inclusion of even a
simple irrelevant or obscure ground, among several relevant and clear
grounds, is an invasion of the detenu‟s constitutional right is that the Court
is precluded from adjudicating upon the sufficiency of the grounds, and it
cannot substitute its objective decision for the subjective satisfaction of the
detaining authority. Even if one of the grounds or reasons, which led to
subjective satisfaction of detaining authority, is non-existent or
misconceived or irrelevant, the order of detention would be invalid. Where
order of detention is founded on distinct and separate grounds, if any one of
the grounds is vague or irrelevant the entire order must fall. The satisfaction
of detaining authority being subjective, it is impossible to predicate whether
the order would have been passed in the absence of vague or irrelevant data.
A ground is said to be irrelevant when it has no connection with the
satisfaction of the authority making the order of detention. Irrelevant
grounds, being taken into consideration for making the order of detention,
are sufficient to vitiate it. One irrelevant ground is sufficient to vitiate the
order as it is not possible to assess, in what manner and to what extent, that
irrelevant ground operated on the mind of the appropriate authority, and
contributed to his satisfaction that it was necessary to detain the detenu in
order to prevent him from acting in any manner prejudicial to the
maintenance of the public order or security of the State. Reference in this
regard is made to Mohd. Yousuf Rather v. State of J&K and others, AIR
1979 SC 1925; and Mohd. Yaqoob v. State of J&K and ors, 2008 (2) JKJ
255 [HC].
21. Grounds of detention must lay down the charge against detenu and it
must be precise, unequivocal and unambiguous. The detenu must be in a
position to give a specific reply/rebuttal to the charge and that is only
possible where charge is specific and precise. Else, the detenu is only able to
give a bare denial by stating that the allegations are false. If the grounds of
detention are based on unsubstantiated allegations, the same along with the
order of detention can be quashed as the detenu has not been given
opportunity to make a viable representation either to detaining authority or
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to advisory board. The opportunity to represent to the authorities concerned
is not a hollow formality. To detain a person only based on allegations
without there being any material to substantiate those allegations would
imperil the fundamental rights of an individual enshrined under Article 21 of
the Constitution. These observations have been made by the Division Bench
of this Court in LPA no.19/2024 titled as Showkat Ali v. Union Territory of
J&K and others, vide judgement dated 26.07.2024.
22. For the reasons discussed above, the detention Order no.
11/DMA/PSA/DET/2024 dated 20.04.2024, passed by District
Magistrate, Anantnag, is quashed. Respondents, including Superintendent
Jail concerned, are directed to release the detenu forthwith, provided he is
not required in any other case.
23. Disposed of.
24. 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 11
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