Jammu & Kashmir High Court – Srinagar Bench
Suhail Ahmad Ganie vs Union Territory Of J&K Through … on 18 April, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP(Crl) No.127/2023
Reserved on: 13.02.2025
Pronounced on: 18.04.2025
Suhail Ahmad Ganie, aged 21 years S/o Mohammad Ashraf Ganie R/o
Sathergund, Tehsil Kakapora, District Pulwama through his father, Mohammad
Ashraf Ganie, aged 55 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, Pulwama
....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. DMP/PSA/23/08 dated
31.03.2023 (impugned detention order) passed by District Magistrate, Pulwama
– respondent no.2 herein (for short „detailing authority‟) whereby detenu,
namely, Suhail Ahmad Ganie, S/o Mohammad Ashraf Ganie R/o Sathergund,
Tehsil Kakapora, District Pulwama, has been placed under preventive detention
with a view to prevent him from acting in any manner prejudicial to the
security of the State, 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 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.
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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. Learned counsel for petitioner states that the detaining authority in the
grounds of detention has shown its awareness about the booking of the detenu
under Section 107/151 of the Criminal Procedure Code for having been
allegedly involved in the activities prejudicial to the peace and tranquillity and
on the said basis of some discreet reports claimed to have been received by the
detaining authority from police agencies, ordered the detention of the detenu
and that neither on account of his booking under Section 107/151 Cr.P.C., nor
the detenu could have been detained under preventive detention, if at all, the
detenu was involved in the activities prejudicial to the peace and tranquillity
nor on the basis of the so-called discreet report referred to in the grounds of
detention having formed the basis for detention of the detenu as same were not
furnished to him to enable him to make an effective representation against his
detention. It is also stated by counsel for detenu that the grounds of detention
are vague, indefinite and cryptic, inasmuch as grounds of detention does not
disclose any activity on the basis whereof detention can be passed and that
detaining authority has not attributed any specific allegation against 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 is that although representation filed by detenu post detention, which
according to respondents has been rejected on 11.04.2023, yet the rejection
order has neither been conveyed 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 08.05.2023, 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
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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.
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
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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.
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 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
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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 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:
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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 father, 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 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
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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 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
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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 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.
DMP/PSA/23/08 dated 31.03.2023, passed by District Magistrate, Pulwama, 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
18.04.2025
(Qazi Amjad, Secy)
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WP(Crl) No. 127/2023
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