Jammu & Kashmir High Court – Srinagar Bench
Ishfaq Ahmad Wani Aged 30 Years S/O Late … vs Union Territory Of J&K Through … on 18 July, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
HCP No. 162/2024
Reserved on: 03.07.2025
Pronounced on: 18.07.2025
Ishfaq Ahmad Wani Aged 30 Years S/o Late Ama Wani R/o Cheer Pora
Uttersoo Shangus Anantnag through his brother Manzoor Ahmad Wani.
....... Petitioner(s)
Through: Mr. Abid Hamid, Advocate
Versus
1. Union Territory of J&K through Principal Secretary, Home Department ,
J&K Govt. Civil Sectt. Srinagar/Jammu
2. District Magistrate, Anantnag
3. Superintendent of Polic Cental Jail, Kotbhalwal Jammu.
....Respondent(s)
Through: Mr. Ilyas Laway, GA
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition, Order no.14/DMA/PSA/ DET/
2024 dated 20.04.2024, passed by District Magistrate, Anantnag –
respondent no.2, (for short ‘detailing authority’) whereby detenu, namely,
Ishfaq Ahmad Wani, S/o Late Ama Wani R/o Cheer Pora Uttersoo
Shangus, 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, 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 this petition is that the detenu
along with other OGWs as alleged in the grounds of detention was
apprehended by the Police Anantnag in case FIR No. 49/2024 for
investigation, although, the evidence so collected against the detenu is not
sufficient to the extent to book him in the case under substantive laws but his
involvement cannot be ruled out. However, he has no connection with any
terrorist organization or with terrorist cadres, being vague, imaginary and
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without basis. It is also averred that detaining authority has passed the
impugned detention order mechanically without application of mind,
inasmuch as the detenu has neither past criminal record nor has any FIR
lodged against him but has been falsely implicated in FIR No. 49/2024 U/S
18, 20 UAPOA 7/25 Arms Act ¾ Exp. Subs Act of P/S Anantnag, when the
detenu has never been put to investigation/enquiry in connection with the
said FIR nor the detenu or his any family member are aware of any such
FIR. It has been alleged in the grounds of detention that the detenu is OGW
with banned terrorist organization but the respondents have failed to name
the terrorist with whom he has association, inasmuch as the grounds of
detention, are vague, irrelevant, non-existent and the allegations are bereft of
specific details and without any reference to the past conduct of the detenu.
The grounds of detention do not disclose any activity which would be
prejudicial to the security of State much less the grounds which are based on
mere apprehensions inasmuch as the detaining authority has not applied its
mind to the facts of the case but has acted to the report submitted by Sr.
Superintendent of Police, Anantnag, as the grounds of detention do not
indicate any criminal case being registered against the detenu at any point of
time but has been bound down for keeping peace and tranquillity. The
detenu is neither associated with any organization nor involved in any such
activity which is prejudicial to the security of the State.
3. 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
relied upon by the detaining authority, was provided to the detenu at the time
of execution of warrant.
4. 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.
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5. The counsel for petitioner states that in the dossier it is stated that in
the year 2002, sister and brother of detenu was brutally killed by foreign
terrorists, therefore, the detenu can by no stretch of imagination support
terrorism or indulge himself in any activity which would be prejudicial to
the Security of State or maintenance of public order. It is also stated that
there was no justification for the District Magistrate , Anantnag to order
detention of the detenu on the strength of FIR No. 49/2024 which the fact of
the matter is that the detenu was never put to investigation/enquiry in
connection of the said FIR nor has the detenu or his any other family aware
of any such FIR, therefore, it can never be inferred that the detenu was/is
OGW with banned terrorist organization inasmuch as the detaining authority
has not attributed any specific allegation against the detenu . The vague
allegations levelled against the detenu are based on mere whims, caprices
and surmises of the detaining authority and are ipso-facto insufficient and
inconsistent to the provisions of Public Safety Act. The grounds are bereft of
specific details which renders the order of detention vague and non-existent
in the eyes of law. Since the detenu is a student with no past criminal
background, thereof, the order of detention is unwarranted. Learned counsel
for petitioner has made reference to Dr. Ram Krishan Bhardwaj v. The
State of Delhi and others , 1953 SCR 708; Shalini Soni (Smt.) and others
v. Union of India and others 9180) 4 SCC 544; Icchu Devi Choraria
(Smt.) v. Union of India and others (1980) 4 SCC 531; and Jai Singh and
ors v State of Jammu and Kashmir (AIR 1985 SC 764). It is being also
stated that in the grounds of detention it is mentioned that detenu was bound
down and released on surety bond. He also avers that although the
respondents in their counter/reply affidavit state that representation of detenu
was rejected, but detenu/petitioner was never informed about rejection of
representation, as such, the guaranteed rights of detenu have been violated.
6. On the contrary, the counsel for respondents, while opposing the
submission of counsel for petitioner, would vehemently contend that the
order under challenge has been passed by the detaining authority validly and
legally owing to the activities the detenu being prejudicial to the Security of
the State.
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7. 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.
8. 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
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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.
9. 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.
10. 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.
11. 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.”
12. 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
5
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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.
13. 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.
14. 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 Board6
HCP no.162/2024
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)
15. 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.
16. 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.
17. 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
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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.
18. In the case in hand, it is an admitted position that representations had
been made by detenu through his mother and brother to respondent no.1,
which, according to respondents, were rejected. However, there is nothing
on record to show that rejection of representations has been forthwith
communicated to detenu/petitioner inasmuch as the rejection of8
HCP no.162/2024
representation, according to counsel for petitioner, has to come fore only
when respondents filed their counter. 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.
19. For the reasons discussed above, the detention Order no. 14/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.
20. Disposed of.
21. Registry to return detention record to learned counsel for respondents.
(Vinod Chatterji Koul)
Judge
Srinagar
18.07.2025
(Qazi Amjad, Secy)
Whether approved for reporting? No
QAZI AMJAD YOUSUF
I attest to the accuracy and
authenticity of this document 9
18.07.2025 16:52 HCP no.162/2024
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