Jammu & Kashmir High Court – Srinagar Bench
Raja Ikhlaq Akbar Alias Sabha vs Union Territory Of J&K And Ors on 1 August, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP no.127/2023
Reserved on: 29.05.2025
Pronounced on: 01.08.2025
Raja Ikhlaq Akbar alias Sabha
....... Petitioner (s)
Through: Mr. Waseem Ramzan Lone, Advocate
V/s
Union Territory of J&K and ors.
.........Respondent(s)
Through: Mr Faheem Nissar Shah, GA
CORAM:
HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition, the petitioner is seeking quashing
of the Order No.16-DMK/PSA of 2023 dated 12.09.2023, passed by
District Magistrate, Kupwara – respondent no.2 (detaining authority),
whereby the detenu (Raja Ikhlaq Akbar @ Sabha), has been placed under
the preventive detention to prevent him from acting in any manner
prejudicial to the maintenance of security of State.
2. Reply Affidavit has been filed by the respondents.
3. I have heard the learned counsel for the parties. I gone through the
detention record produced by the learned counsel for the respondents and
considered the matter.
4. Assailing the impugned order, it is stated by counsel for petitioner that
respondent no.2 was constitutionally duty bound to furnish all the
relevant material to detenu, like copy of dossier and other connected
documents which as per grounds of detention had been furnished to
detaining authority by police and relying upon which detention order
came to be passed, the material regarding allegations as mentioned in
grounds of detention, so as to enable him to make an effective
representation against his detention by giving his version of facts
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attributed to him and make an attempt to dispel apprehensions nurtured
by detaining authority concerning alleged involvement of detenu in
alleged activities against the said order to competent authority. Since
filing of an effective representation is a constitutional right and to enable
detenu to file such a representation it is necessary to provide him copies
of dossier, connecting documents and material and in the instant case
respondent no.2 has not provided any such material to detenu, the
material which has been furnished to detenu is not sufficient for making
effective representation.
The above contentions of counsel for petitioner are misconceived.
The reason being that perusal of the detention record produced by the
learned counsel for the respondents reveals that all the material that has
been relied upon by the detaining authority while passing the order of
detention has been furnished to the detenu to make an effective
representation against his detention. Perusal of execution report and
Receipt of grounds of detention reveals that detenu has been given all
the material relied upon by the detaining authority to pass impugned
order of detention, which consists of 30 leaves. He had even been
informed to make the representation both to the Government and the
detaining authority.
Therefore, the detenu cannot be heard saying that he was not
informed to whom representation was to be made against his detention.
5. The counsel for petitioner also submits that post detention, whatever
material was available on the basis of same, petitioner submitted a
representation before respondent no.2, but same was not considered in
due course of law nor material as requested was furnished to detenu.
Non-consideration of representation renders detention illegal and
unconstitutional.
This contention of counsel for petitioner is again misconceived.
The reason being that the Report of the Advisory Board dated
26.09.2023, is on the detention record, which would reveal that the
representation of nephew of the detenu, namely, Raja Kabir, has been
considered by the Advisory Board and it has been found by Advisory
Board that there is no substance in the representation and rejected it.
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6. The counsel for the petitioner also states that the allegations as reflected
in the grounds of detention are vague and do not justify passing of
detention order on the basis of such allegations. Detaining authority has
mentioned various allegations in the grounds of detention, but no specific
allegation has been given regarding detenu in the case mentioned in the
grounds of detention, not even an iota of connection is given in grounds
of detention connecting the detenu with allegations. The very basis of
satisfaction recorded by the detaining authority is vague, as such, the
impugned order of detention suffers from complete non-application of
mind on the part of detaining authority.
Again, the above submissions of counsel for petitioner are
unfounded. Perusal of grounds of detention reveals that exclusive
subjective satisfaction has been reached on the basis of prejudicial
activities pointed out in grounds of detention by the detaining authority.
It is mentioned in grounds of detention that since teenage detenu
indulged into drug trafficking on the instructions of his father, Ghulam
Akbar Khan, who illegally crossed over to POJK in the year 1990 to
obtain arms training and to join terrorist rank but chose to remain there
as launching commander for terrorist organisation, Hizb-ul-Mujahideen
and in 2013 detenu’s brother, namely, Raja Zahoor Akbar, also
exfiltrated to POJK on insistence of his father to actively work for
terrorist outfit, HM, and subsequently the detenu emboldened to expand
his smuggling syndicate. It is also mentioned in grounds of detention that
detenu not only actively involved in narcotic trade but was in regular
touch with father and brother through end-to-end encrypted applications
for promotion of terrorist activities of proscribed terror outfit HM. It is
also made mention of in grounds of detention that while some portion of
detenu’s illegal activities had been documents and case FIR no.11/2023
under Section 8A/27B, 29 NDPS Act of police station Karnah had been
registered, for acquiring disproportionate property acquired through
illegal sale of drugs etc., a large portion of his illegal activities including
his discreet participation in narco-terror related activities though
clandestinely could not be formally documents in the records of police
due to detenu’s stealthily techniques and in order to prevent the detenu
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from such activities which posed direct threat to security of the State, the
preventive measures were taken against the detenu from time to time, but
after every release he had been given many chances and guidance with
the hope that he would lead a normal life instead of that he got more
confidence and misused his liberty and again indulged in
unlawful/antinational activities.
7. The Supreme Court in the case of Debu Mahato v. State of W.B. (1974) 4
SCC 135, has categorically observed and said that while ordinarily-
speaking one act may not be sufficient to form requisite satisfaction,
there is no such invariable rule and that in a given case ” one act may
suffice”. That was a case of wagon-breaking and given the nature of the
Act, it was held therein that “one act is sufficient”. The same principle
was reiterated in the case of Anil Dely v. State of W.B. (1974) 4 SCC
514. It was only a case of theft of railway signal material. Here too “one
act was held to be sufficient”.
8. Similarly, in Israil S K v. District Magistrate of West Dinajpur (1975) 3
SCC 292 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527, single
act of theft of telegraph copper wires in huge quantity and removal of
railway fish-plates respectively, was held sufficient to sustain the order
of detention. In Saraswathi Seshagiri v. State of Kerala (1982) 2 SCC
310, a case arising under a single act, viz. attempt to export a huge
amount of Indian currency was held sufficient. In short, the principle
appears to be this: “Though ordinarily one act may not be held sufficient
to sustain an order of detention, one act may sustain an order of detention
if the act is of such a nature as to indicate that it is an organised act or a
manifestation of organised activity.”
9. The gravity and nature of the act is also relevant. The test is whether the
act is such that it gives rise to an inference that the person would continue
to indulge in similar prejudicial activity. That is the reason why single
acts of wagon-breaking, theft of signal material, theft of telegraph copper
wires in huge quantity and removal of railway fish-plates were held
sufficient by the Supreme Court. Similarly, where a person tried to
export huge amount of Indian currency to a foreign country in a planned
and premeditated manner, as in the present case detenu has been found
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continuously indulging in prejudicial activities since 2018, it was held
that such single act warrants an inference that he will repeat his activity
in future and, therefore, his detention is necessary to prevent him from
indulging in such prejudicial activity.
10.Another contention of counsel for petitioner is that grounds of detention
are verbatim copy of police dossier which clearly shows that detaining
authority has not applied its mind to the available material but has made
detention order mechanically.
This contention of counsel for petitioner is misconceived. The
detaining authority has given and made the grounds of detention on the
basis of the material produced before it by the sponsoring agency and
after deriving subjective satisfaction has passed the order impugned.
11.It may be further added here that the responsibility for the security of
State, or maintenance of public order, or essential services and supplies,
rests on the Executive and it must, therefore, have necessary powers to
order the preventive detention. Thus, the subjective satisfaction of a
detaining authority to detain a person or not, is not open to objective
assessment by a Court. The Court is not a proper forum to scrutinize
merits of administrative decision to detain a person. The Court cannot
substitute its own satisfaction for that of the authority concerned and
decide whether its satisfaction was reasonable or proper, or whether in
the circumstances of the matter, the person concerned should have been
detained or not. It is often said and held that the Courts do not even go
into the question whether the facts mentioned in grounds of detention are
correct or false. The reason for the rule is that to decide this, evidence
may have to be taken by the Courts and that is not the policy of law of
preventive detention. This matter lies within the competence of Advisory
Board. It is evident from perusal of report of Advisory Board that it has
considered the case of petitioner and rejected the representation of the
nephew of the detenu.
12.Section 8 (1) of the J&K Public Safety Act, 978, provides that the
Government may, if it is satisfied with respect to any person that with a
view to prevent him from acting in any manner prejudicial to the security
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of the State or the maintenance of public order, it is necessary so to do,
make an order directing that such a person be detained.
13.In the present case, detaining authority has reported the fact about
making of order of detention to the Government. I have gone through the
detention record produced by counsel appearing for respondents which
has been approved and confirmed by the competent authority.
14.In such circumstances, detaining authority had, immediately upon
issuance of impugned detention order, reported the said fact to the
Government and the Government approved impugned detention order.
Thus, there is no hindrance in saying that provisions of Subsection (4) of
Section 8 of the Act of 1978, have been strictly complied with by
respondents.
15.Section 9 of the Act provides that detention order may be executed at
any place in the manner provided for executing the warrants of the arrest.
Section 10 of the Act provides that any person in respect of whom a
detention order is made under Section 8 of the Act shall be liable to be
detained in such a place and under such conditions including the
conditions as to the maintenance of the discipline and punishment for the
breaches of the discipline as the Government may specify and that any
person placed under preventive detention shall be liable to be removed
from one place of detention to another place of detention. Where a person
has been detained in pursuance of detention order under Section 8 of the
Act, made on the two or more grounds, such order of detention, as
envisaged under Section 10-A of the Act, shall be deemed to have been
made separately on each of such grounds and as a consequence whereof,
such an order shall not be deemed to be invalid or inoperative merely
because one or some of the grounds is or are vague, non-existent, not
relevant, not connected or not proximately connected with such person.
16.Section 13 of the Act provides that when a person is detained in
pursuance of a detention order, the authority making the order shall, as
soon as maybe, 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
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made and shall afford him the earliest opportunity of making a
representation against the order of detention. However, Subsection (2) of
Section 13 provides that nothing in subsection (1) of Section 13 shall
require the authority to disclose facts which it considers to be against the
public interest to disclose.
17.In view of the Statutory and the Constitutional requirements to be
followed by the respondents in the present case, as has also been noticed
above, I have gone through the detention record produced by the counsel
for the respondents. All the material relied upon by the detaining
authority had been furnished to the detenu. He had been intimated to
make a representation to both the Government and the detaining
authority.
18.Article 22 (5) of the Constitution of India casts a dual obligation on the
detaining authority, namely.:
(i) To communicate grounds of detention to the detenu at the earliest;
(ii) To afford him the earliest opportunity of making a representation
against the detention order which implies the duty to consider and
decide the representation when made, as soon as possible.
19.The Supreme Court has reiterated that the communication means
bringing home to the detenu the effective knowledge of the facts and the
grounds on which the detention order is based. To a person who is not
conversant with the English language, in order to satisfy the requirement
of the Constitution, must be given the grounds in a language which he
understands and in a script that he can read, if he is a literate person. If a
detained person is conversant with English language, he will naturally
be in a position to understand gravamen of the charge against him and
the facts and circumstances on which order of detention is based. So is
the position in the present case.
20.The Constitution has guaranteed the freedom of movement throughout
the territory of India and has laid down the detailed rules about the arrest
and the detention. It has also, by way of the limitations upon the freedom
of the personal liberty, recognised right of the State to legislate for
preventive detention, subject to certain safeguards in favour of detained
person, as laid down in Clauses (4) & (5) of Article 22. One of those
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safeguards is that detained person has a right to be communicated the
grounds on which order of detention has been made against him, in order
that he may be able to make his representation against the order of
detention. In the circumstances of instant case, it has been shown that
detenu had opportunity, which the law contemplates in his favour, for
making an effective representation against his detention.
21.In the present case, perusal of the detention record reveals that the
Advisory Board has conveyed that the grounds of detention formulated
by the detaining authority were sufficiently supported by the dossier/
material and that the grounds of detention and other relevant material
were furnished to the detenu at the time of taking him into the detention
and that the detenu was also informed about his right of making the
representation against his detention. The Advisory Board considered the
representation of the nephew of the detenu. After consideration, the
Advisory Board rejected the representation of the nephew of the detenu.
The report of the Advisory Board also reveals that all the requirements
contemplated under the Act, have been complied with and no error of
law or procedure, which would invalidate the detention, have been
committed by the detaining authority and as an outcome thereof, the
detention is in conformity with the principles as enshrined under Article
22(5) of the Constitution of India and the provisions of the Act. The
Advisory Board has opined that there is sufficient cause for detention of
detenu with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order.
22.For the reasons discussed above, the instant petition is dismissed.
23.Detention record be returned to the learned counsel for the respondents.
(VINOD CHATTERJI KOUL)
JUDGE
SRINAGAR
01.08.2025
(Qazi Amjad, Secy)
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