Jammu & Kashmir High Court
Mohd. Abdullah Gujjar vs Ut Of Jammu & Kashmir Through on 30 August, 2025
Serial No. 43
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 21.08.2025
Pronounced on: 30.08.2025
HCP No. 32/2025
Mohd. Abdullah Gujjar
@ Dullah @ Sher Khan,
S/O Haji Nabi Baksh Gujjar
R/O Village Sigdi Bhata,
Tehsil Mughal Maidan , District Kishtwar
Through brother Noor Din ...Petitioner
Through: Mr. A. A. Hamal, Advocate.
Vs
1. UT of Jammu & Kashmir through
Principal Secretary to Govt., (Home),
Civil Secretariat,
Jammu.
2. District Magistrate, Kishtwar.
3. Senior Superintendent of Police, Kishtwar.
4. Superintendent, District Jail, Kathua.
..... Respondent(s)
Through: Mr. Eishaan Dadhichi, GA.
CORAM: HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner-Mohd. Abdullah Gujjar @ Dullah @ Sher Khan, S/O Haji
Nabi Baksh Gujjar R/O Village Sigdi Bhata, Tehsil Mughal Maidan, District
Kishtwar (for short ‘the detenue’) challenged the detention Order
No.3rd/DM/K/PSA of 2024 dated 07.11.2024 (‘impugned order’), issued by
respondent No.2, District Magistrate, Kishtwar (hereinafter to be referred as ‘the
detaining authority’), whereby detenue has been placed under preventive
2 HCP No.32/2025
detention, in order to prevent him from acting in any manner prejudicial to the
maintenance of ‘security of State’.
2. Petitioner contends that the Detaining Authority passed the impugned
detention order without there being due application of mind; 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 allegations against the detenue are false and the
sponsoring agency suppressed the vital fact that earlier also, the detenue was
detained under preventive detention, and now same FIRs are made the basis of
detaining the detenue despite the fact that this court had quashed the earlier
detention order; that some vague DDRs are allegedly recorded against the
detenue in order to put detenue under preventive detention and not a single FIR
has been registered against the material after quashment of earlier detention
order; that whole of the material was not supplied to the detenue which
incapacitated the detenue in filing the effective and meaningful representation
against his detention order. Lastly, it is prayed that the impugned detention
order be quashed by allowing the present petition.
3. The respondents have contested the writ petition by filing counter
affidavit, wherein, it has been submitted that the impugned order of detention
has been passed by the detaining authority after carefully analyzing the dossier
dated 18.10.2024 submitted by SSP Kishtwar; 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
3 HCP No.32/2025
that the activities of the detenue were prejudicial to the security of the State and
that there was every likelihood 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.
4. Heard learned counsel for the parties at length, perused the record and
considered the matter.
5. The detention record, as produced, reveals that the detenue was involved
in following cases registered at Chatroo and Kishtwar Police Stations:-
1) FIR No. 03/2003: U/S 366/302 RPC, 7/274 IA Act;
2) FIR No. 31/2004: U/S 395/120/121-A RPC, 7/27 IA Act;
3) FIR No. 08/2006: U/S 302 RPC, 7/27 IA Act;
4) FIR No. 11/2006: U/S 302 RPC, 7/27 IA Act;
5) FIR No. 101/2006: U/S 302 RPC, 3/25 IA Act;
6) FIR No. 41/2006: U/S 364 RPC, 7/27 IA Act;
7) FIR No. 198/2006: U/S 302/307 RPC, 7/27 IA Act;
8) FIR No. 27/2007: U/S 302 RPC; and
9) FIR No. 161/2007: U/S 302/212/109 RPC, 7/27 IA Act.
Besides the above nine FIRs, the following six DDRs have been recorded
against the petitioner at Chatroo Police Station and Mughalmaidan Police Post:
i) DD No.19 dated 11.05.2024;
ii) DD No. 11 dated 28.06.2024;
iii) DD No. 13 dated 29.06.2024;
iv) DD No. 11 dated 30.06.2024;
4 HCP No.32/2025
v) DD No. 14 dated 08.07.2024; and
vi) DD No. 10 dated 12.07.2024
Involvement of the detenue in the aforementioned cases appears to have heavily
weighed with the detaining authority, while passing impugned detention order.
6. Though many grounds on behalf of the detenue have been raised, 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 cases/FIRs of the year 2003, 2004, 2006 and 2007 are made
basis for passing the detention order, in which the petitioner has already
been acquitted;
iii) That insufficient material, no compelling circumstances and vague
DDRs were made basis for passing the impugned detention order, as no
new FIR has been registered against the petitioner;
iv) That the grounds of detention do not clearly mention the charge and the
material on the basis of which the grounds of detention find support for
each of the charge;
v) That there is non-application of mind on the part of respondents vis-à-vis
no cognizance taken of the previous detention of the petitioner ordered
5 HCP No.32/2025vide No.01/PSA of 2018 on 03.05.2018 and quashed by this court vide
order dated 06.09.2018 vitiates the impugned detention order; and
vi) That the grounds of detention of the earlier prevention detention order
should not be taken into consideration either as a whole or in part even
along with fresh grounds of detention for drawing requisite subjective
satisfaction to pass a fresh detention order.
7. 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. On a perusal of the record it is found that the execution report as
well as the Receipt of Grounds of Detention, nowhere mention that the detenue
can make a representation to the detaining authority. Also, there is no mention
of time period within which the petitioner can make representation to the
detaining authority as well as Government against his order of detention, thus,
vitiating the impugned detention order. 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
6 HCP No.32/2025grounds 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.”
8. 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 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. Since the petitioner has all along
denied that he was informed of his right to make representation to the detaining
authority also the time period within which he can make representation, the
respondents ought to have filed an affidavit of the Executing Officer in this
regard. Though the Executing Officer has filed an affidavit, which is placed on
record, but it is conspicuously silent regarding the above. 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.
9. So far as the second ground that 9 FIRs/cases are shown for passing
detention order against the detenue is concerned, the respondents have
themselves admitted in the grounds of detention that the detenue got acquitted in
all the FIRs. So far as DDR entries recorded against the detenue are concerned,
a perusal of the ground of detention would show that those have not culminated
in any criminal cases. Merely recording DDRs alleging no specific acts cannot
be the ground to detain a person. It is surprising that if the acts mentioned in the
DDR entries are criminal acts and are cognizable in nature, then why the State
has not filed any FIR. Law provides that if cognizable offence is committed and
7 HCP No.32/2025
is brought to the knowledge of any authority, First Information Report should be
lodged. If at all those acts mentioned in DDRs make out any criminal offence,
what prevented the State to file a First Information Report is shrouded in
mystery.
10. The third and fourth grounds, which have been urged by the learned
counsel for the detenue is that the grounds of detention do not clearly mention
the charge and the material on the basis of which the grounds of detention find
support for each of the charge. A Division Bench of this Court in a case titled
„Showkat Ali V. UT of J&K & Ors‟ decided on 26.07.2024 in para 19 held as
follows:
“19. It is essential for the grounds of detention to clearly mention the
charge and the material on the basis of which the grounds of
detention find support for each of the charge. The State cannot
level bald allegations on the detenue and hand over a bunch of
documents and take the stand that all material considered by
the detaining authority has been handed over the detenue. It
would also be necessary for the detaining authority to mention
in the grounds of detention the material/evidence/documents on
the basis of which it is levelling a specific charge against the
appellant in the grounds of detention in order to accord a
viable opportunity to the appellant to give a representation to
the detaining authority or to the advisory board, as the case
may be.”
11. In so far as the fifth ground raised by the counsel for the petitioner is
concerned, it is an admitted fact as emerges from the record that the detenue
herein have had been previously detained by the respondents in terms of the
Detention Order No. 01/PSA of 2018 on 03.05.2018 which came to be quashed
by this court in terms of the judgment dated 06.09.2018. Perusal of the record
8 HCP No.32/2025
available on the file as also the detention record produced by counsel for the
respondents would manifestly demonstrate that the respondents in general and
the detaining authority in particular has remained oblivious to the said fact, thus,
rendering the impugned order legally un-sustainable more so, in view of the
judgment of the Apex Court passed in case titled as “C. B. Kahar vs. N. L.
Kalna” reported in AIR 1989 SC 1234, wherein at para 12 following has been
laid down:-
“12. It emerges from the above authoritative judicial pronouncements
that even if the order of detention comes to an end either by
revocation or by expiry of the period of detention there must be
fresh facts for passing a subsequent order. A fortiori when a
detention order is quashed by the court issuing a high prerogative
writ like habeas corpus or certiorari the grounds of the said order
should not be taken into consideration either as a whole or in part
even along with the fresh grounds of detention for drawing the
requisite subjective satisfaction to pass a fresh order because once
the court strikes down an earlier order by issuing rule it nullifies
the entire order.”
12. So far as the last ground is concerned, which is that the detaining
authority did not make mention of previous preventive detention order issued
against the detenue so as to take into consideration the grounds of detention and
the FIRs/Cases of the years 2003, 2004, 2006 and 2007, on the basis of which,
he was taken into preventive detention vide Order No.01/PSA of 2018 dated
03.05.2018, is a plausible ground. In the considered opinion of this court, when
a detention order is quashed by the court, issuing a high prerogative writ, like
habeas corpus or certiorari, the grounds of said detention order should not be
taken into consideration, either as a whole or in part, even along with fresh
9 HCP No.32/2025
grounds of detention for drawing subjective satisfaction to pass a fresh detention
order. A perusal of the record would show that there is no single case/FIR
registered against the petitioner after quashment of earlier detention order except
the alleged six DDRs recorded against the petitioner, which point this court has
dealt with in the preceding paragraphs. In the present case, the respondents have
not referred to the earlier detention order passed against the petitioner, nor its
quashment, so as to use the same cases/FIRs to form basis and to pass the
impugned detention order. In that view of the matter, the impugned detention
order is vitiated and cannot sustain in the eye of law.
13. In the face of the aforestated legal position, it can safely be stated that
the detaining authority in the instant case has acted arbitrarily 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,
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:
10 HCP No.32/2025
“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 and secondly, shown
involvement in stale, remote and with no live link cases/FIRs of the year 2003,
2004, 2006 and 2007, in which, petitioner was admittedly acquitted; thirdly,
vague FIRs made basis for passing the impugned detention order as not a single
FIR was registered against the petitioner after quashment of earlier detention
order in the year 2018; fourthly, absence of charge, only allegations that too
vague allegations; fifthly non application of mind on the part of the detaining
authority vis-à-vis no mention of earlier detention order and its quashment by
this court; and lastly, no new grounds urged for passing the impugned detention
order, it can safely be held that the detenue was disabled to exercise his right to
file a meaningful and effective 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
11 HCP No.32/2025
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.3rd/DM/K/PSA of 2024 dated 07.11.2024, passed by respondent No.
2, District Magistrate, Kishtwar, is hereby quashed. The detenue- Mohd.
Abdullah Gujjar @ Dullah @ Sher Khan, 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
30.08.2025
Raj Kumar
Whether the order is speaking? :Yes
Whether the order is reportable? : Yes
Raj Kumar
2025.08.30 15:17
I attest to the accuracy and
integrity of this document
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