Mohd. Iqbal Koka vs Ut Of J&K & Others on 2 April, 2025

Jammu & Kashmir High Court – Srinagar Bench

Mohd. Iqbal Koka vs Ut Of J&K & Others on 2 April, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR
                                                 Reserved on: 27.02.2025
                                                 Pronounced on: 02.04.2025

                             HCP No. 66/2024

Mohd. Iqbal Koka                                     ...PETITIONER(S)



      Through: -Mr. Usman Gani, Advocate
vs.

UT OF J&K & OTHERS                                  ...RESPONDENT(S)


      Through: -Mr. Syed Musaib, Dy. AG.

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.

                               JUDGMENT

1) Through the medium of present petition, the petitioner has assailed

detention order bearing No.02/DMA/PSA/DET/2024 dated 11.01.2024,

issued by District Magistrate, Anantnag (for brevity “detaining

authority”). In terms of the aforesaid order, Mohd Iqbal Koka(” the

detenue”) has been placed under preventive detention and lodged in

Central Jail, Kothbalwal, Jammu, in order to prevent him from acting

prejudicially to the security of the State/UT of J&K.

2) The petitioner has contended that the Detaining Authority has

passed the impugned detention order mechanically without application of

mind as the allegations mentioned in the grounds of detention have no

nexus with the detenue and that the same have been fabricated by the

police in order to justify its illegal action of detaining the detenue. It has

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been contended that the grounds of detention are vague, non-existent on

which no prudent man can make a representation against such allegations.

It has been further contended that the procedural safeguards have not been

complied with in the instant case as whole of the material that formed

basis of the impugned detention order has not been supplied to the

petitioner. It has also been contended that the representation filed by the

petitioner has not been considered by the respondents.

3) The respondents have resisted the petition by filing their reply

affidavit, wherein they have contended that the activities of the detenue

are highly prejudicial to the security of the State. It is pleaded that the

detention order and grounds of detention along with the material relied

upon by the detaining authority were handed over to the detenue and the

same were read over and explained to him. It has been further contended

that the detenue was informed that he can make a representation to the

government as well as to the detaining authority against his detention. It is

also averred in the reply affidavit that all statutory requirements and

constitutional guarantees have been fulfilled and complied with by the

detaining authority and that the order has been issued validly and legally.

The respondents have produced the detention record to lend support to the

stand taken in the counter affidavit.

4) I have heard learned counsel for parties and perused the record.

5) Learned counsel for the petitioner, while seeking quashment of the

impugned order, projected various grounds but his main thrust during the

course of arguments was on the ground that the representation filed by the

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petitioner against the impugned order of detention has not been

considered by the respondents thereby violating his statutory and

constitutional rights.

6) So far as the ground of challenge urged by learned counsel for the

petitioner is concerned, a perusal of the detention record reveals that the

representation of the petitioner dated 27.02.2024 has been rejected by the

government and an intimation in this regard has been communicated by

Deputy Secretary to Government, Home Department, to the District

Magistrate, Anantnag in terms of communication No.Home/PB-V/19-

2023(7389997) dated 27.06.2024. In the said communication, the

respondents have admitted receipt of the representation of the petitioner.

Thus, it is admitted by the respondents that they have received the

representation of the petitioner against the impugned order of detention.

The representation has been received by the respondents probably in the

third week of March, 2024, which is clear from communication dated

23.03.2024, that forms part of the detention record. The question that

arises for determination is, as to whether consideration of representation

after about three months from the date of receipt of the same satisfies the

requirement of law.

7) The aforesaid question has been answered by the Supreme Court in

the case of “Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur

and others“(2021) 20 SCC 98. It would be apt to refer to observations

made by the Supreme Court in para 47 of the judgment, which are

reproduced as under:-

HCP No.66/2024 Page 3 of 6

“47. By delaying its decision on the representation, the State
Government deprived the detenu of the valuable right which
emanates from the provisions of Section 8(1) of having the
representation being considered expeditiously. As we have noted
earlier, the communication of the grounds of detention to the detenu
“as soon as may be” and the affording to the detenu of the earliest
opportunity of making a representation against the order of
detention to the appropriate government are intended to ensure that
the representation of the detenu is considered by the appropriate
government with a sense of immediacy. The State Government
failed to do so. The making of a reference to the Advisory Board
could not have furnished any justification for the State Government
not to deal with the representation independently at the earliest.
The delay by the State Government in disposing of the
representation and by the Central and State Governments in
communicating such rejection, strikes at the heart of the procedural
rights and guarantees granted to the detenu. It is necessary to
understand that the law provides for such procedural safeguards to
balance the wide powers granted to the executive under the NSA.
The State Government cannot expect this Court to uphold its
powers of subjective satisfaction to detain a person, while violating
the procedural guarantees of the detenu that are fundamental to the
laws of preventive detention enshrined in the Constitution.”

8) From the foregoing analysis of law on the subject, it is manifest that

delaying of decision on the representation of the detenue amounts to an

infringement of a valuable right which 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 expeditious manner strikes at the valuable right of a

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detenue emanating from the provisions of Section 13 of the Jammu &

Kashmir Public Safety Act.

9) In the present case, the respondents have received the

representation of the petitioner in the third week of March, 2024 but the

same has been decided by them only on 27.06.2024. This slackness on

the part of respondents to take a decision on the representation of the

petitioner renders the impugned order of detention illegal.

10) Apart from the above, in the present case, the respondents have not

placed on record anything to show that the order of rejection of

representation was conveyed to the petitioner. The communication dated

27.06.2024 is an inter-departmental communication between Home

Department and District Magistrate, Anantnag. It is not forthcoming from

the record produced by the respondents as to whether the result of the

representation has been conveyed to the petitioner. The Supreme Court in

Sarabjeet Singh Mokha‘s case (supra) 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) For the foregoing reasons, the petition is allowed and the impugned

order of detention is quashed. The detenue is directed to be released from

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preventive custody forthwith provided he is not required not required in

connection with any other case.

12) The detention record be returned to the learned counsel for the

respondents.

(Sanjay Dhar)
Judge

SRINAGAR
02.04.2025
“Bhat Altaf-Secy”

Whether the order is speaking:Yes/No

KARAM CHAND
2025.04.02 17:12
I attest to the accuracy and
integrity of this document
HCP No.66/2024 Page 6 of 6