Jammu & Kashmir High Court
Cm No. 7355/2024 Reserved On: … vs The Union Territory Of Jammu & Kashmir on 11 August, 2025
2025:JKLHC-JMU:2241
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.153/2024
CM No. 7355/2024 Reserved on: 07.08.2025.
Pronounced on: 11.08.2025
Noor Din, Age 57 years, S/O Habib Gujjar,
R/O Kakerwagan, Tehsil Mughalmaidan,
District Kishtwar, J&K
Through son, Mohd. Ashraf ....Petitioner(s)
Through :- Mr. Sanchit Verma, Advocate.
V/S
1. The Union Territory of Jammu & Kashmir
Through Principal Secretary (Home),
Civil Secretariat, Jammu.
2. District Magistrate, Kishtwar
3. Senior Superintendent of Police, Kishtwar.
4. Superintendent, Central Jail, Jammu.
....Respondent(s)
Through :- Mr. Eishaan Dadhichi, GA
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner namely Noor Din S/O Habib Gujjar, R/O Kakerwagan, Tehsil
Mughalmaidan, District Kishtwar (for short „the detenue‟) through his son, has
challenged the detention Order No.4th /DM/K/PSA of 2024 dated 07.11.2024
(impugned order), issued by respondent No.2, District Magistrate, Kisthwar
(hereinafter to be referred as “the detaining authority”), whereby he has been
placed under preventive detention, in order to prevent him from acting in any
manner prejudicial to the maintenance of „security of the State‟.
2. Petitioner has raised many grounds to assail the impugned order. It is his
contention that Detaining Authority though referred earlier case for the year
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2008, along with five DDR entries, as found in the Grounds of Detention, what
was placed before him was only the copies of reports in those matters. Had the
Authorities placed the outcome of such matters vis-à-vis acquittal in case FIR
No.20/2008, there would have been a different conclusion than the one which is
challenged in the present petition. It is also contended that the petitioner was not
informed about his right to make representation to the detaining authority as well
as government as early as possible, which prevented him from making effective
and meaningful representation; that the DDRs allegedly recorded against the
detenue do not disclose any specific activities; that the provisions of preventive
detention have been misused in the case of detenue. Lastly, it is prayed that the
petition be allowed and the impugned detention order be set aside.
3. The respondent No.2, in his counter affidavit, has controverted the
averments made in the petition and submitted that the detenue is an Overground
Workder (OGW) and there is every apprehension that he might be sharing
information related to the movement of security forces with the active militants
of the area; that the detenue may provoke the youth of the area on the name of
Jihad and motivate them to join militant ranks and try to radicalize the youths to
join terrorist groups; that the detention warrant along with grounds of detention
was properly executed through PSI Shubam Kumar of P/S Sarthal under proper
acknowledgement of the detenue and he was fully made to understand in the
language he understands; that the detenue was also informed that he can make
representation to the Govt. against the detention order, if he so desires. Lastly, it
is prayed that the petition be dismissed and the impugned detention order be
upheld as the same has been strictly passed as per the provisions of J&K Public
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Safety Act. The respondents have produced the detention records, in order to
lend support to the contentions raised in the counter affidavit.
4. Learned counsel for the petitioner, while seeking quashment of the
impugned order, reiterated various grounds but his main thrust during the course
of arguments was on the following grounds:
(I) That detenue was not informed that he can make representation to
the detaining authority against his detention;
(II) That the detaining authority has not applied its mind while passing
the detention order as case FIR No.20/2008 of P/S Chatroo has been
made basis for passing the detention order despite the fact that the
detneue has earned acquittal in the aforesaid case; that DDRs
registered against the detenue are vague conjectures and do not
allege any specific activity of the detenue;
(III) That he was not informed about his right to make effective and
meaningful representation, as there is no mention of time in the
detention order, within which, he can make representation;
(IV) That grounds of detention are almost replica of the police dossier, as
such, detaining authority has not applied its mind, acting upon the
dossier.
5. Learned State Counsel, ex adverso, making reference to the grounds of
detention, argued that the activities of the detenue were not only criminal but
also anti-national which are found to be highly prejudicial to the security of
state; that the detention order has been passed in order to desist the detenue from
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indulging in militant actitivites; that the grounds of detention are not replica of
the dossier submitted by the SSP concerned, and the impugned detention order
has been passed with due consideration and application of mind; that there is no
necessity to give in detail the activities of the detenue as the order is preventive
in nature; that whole of the material relied upon had been supplied to the detenue
by the executing officer at the time of execution of the detention warrant and
contents thereof were explained to the detenue in the language understandable to
him; that all the constitutional or statutory safeguards were observed in letter and
spirit and the petitioner had also been informed of his right to move
representation against his detention, in terms of impugned order. It was urged,
finally, that the same be upheld and petition be rejected.
6. Heard learned counsel for the parties at length, perused the detention
record and considered.
7. Para 3 of the counter affidavit filed on behalf of District Magistrate,
Kisthwar-respondent No.2 has detailed the following one case registered at
Police Station, Chatroo vide FIR No.20/2008 u/s 302/404/149/120-B RPC, 7/27
IA Act;
Besides the above case/FIR, grounds of detention show that following 05 DDRs
entries are recorded at P/P Mughalmaidan and P/S Chatroo:
i. DDR No.11 dated 28.06.2024
ii. DDR No. 13 dated 29.06.2024
iii. DDR No. 14 dated 08.07.2024,
iv. DDR No. 10 dated 12.07.2024, and
v. DDR No. 24 dated 12.07.2024.
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Involvement of the detenue in the aforementioned case and DDRs, appear to
have been heavily weighed with the detaining authority, while passing the
detention order.
8. Petitioner has placed on record copy, of the order dated 12.08.2011 passed
by the court of Principal Sessions Judge, Kisthwar acquitting the accused of the
offences in case FIR No.20/2008 u/s 302/404/149/120-B/109 RPC and 7/25
Arms Act. This case in which detenue had earned acquittal after facing trial,
otherwise, could not be based to pass the impugned order, for lack of live and
proximate link, of the alleged commission of offences in the year 2008 to the
impugned order passed in 2024. Stale cases cannot be made basis to pass
detention order. (See: Sama Aruna v. State of Telangana & Ors (2018) 12
SCC 150).
9. So far as the DDR entries (supra) recorded within a short span of a
fortnight are concerned, it is an admitted case that those have not culminated in
any criminal cases. Merely recording DDRs alleging some acts without
specifying any activity allegedly carried out, 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 First
Information Report. Law provides that if cognizable offence is committed and 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 a mystery. It
appears that in view of the stale cases of the year 2008, Police recorded the
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DDRs, just to complete the formality to show grounds to justify detention of the
detenue, there being no other material.
10. As regards the contention of the detenue that he was not informed about
his right to make representation to the detaining authority is concerned, the law
is well settled and is no longer res integra that the detenue must be informed of
his right to make representation to the Detaining Authority as this is one
additional avenue for his detention order to be reconsidered in addition to the
representation to be made to the Government. It is also settled law that once the
Government passes an order approving the order of detention, the Detaining
Authority becomes functus officio and thereafter cannot review its order.
Therefore, the Detaining Authority had to inform the detenue about his right at
the very outset so that the detenue can make a representation for reconsideration
by the Detaining Authority. The Hon‟ble Apex Court in a judgment titled
“Sophia Gulam Mohd. Bham v. State of Maharashtra & Ors. (AIR 1999 SC
3051), has held as under:
“The right to be communicated the grounds of detention flows from
Article 22(5) while the right to be supplied all the material on
which the grounds are based flows from the right given to the
detenue to make a representation against the order of detention. A
representation can be made and the order of detention can be
assailed only when all the grounds on which the order is based are
communicated to the detenue and the material on which those
grounds are based are also disclosed and copies thereof are
supplied to the person detained, in his own language.”
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11. In the case on hand, the ground that the detenue was not informed about
his right to file a representation to the Detaining Authority can also be
ascertained from the detention order. Though, the Detaining Authority as per
record, vide his No.DM/K/2024-25/5153-57 dated 07.11.2024 mentioned that
the detenue may make a representation „to the undersigned and to the
Government‟ against the detention order, if he so desires, however, the perusal
of the compliance report, which is hand written and signed by executing officer,
PSI Shubam Kumar, IC PP Sarthal would show that „the detainee has also been
informed about his right of appeal against the said detention against the
detention order‟ meaning thereby that the detenue had not been informed that he
could file a representation before the Detaining Authority as well. Since the
petitioner has all along denied that relevant material was supplied to him as also
he was not informed about his right to make representation to the detaining
authority, the respondents ought to have filed an affidavit of the executing
officer to the aforesaid extent to controvert the above allegations, which has
ostensibly not been done by the respondents in the instant case.
12. Therefore, the contention made on behalf of detenue that the detention
order is vitiated on this count has also force as a valuable right of filing
representation before the Detaining Authority to reconsider its decision, was not
afforded to the detenue.
13. Next ground as argued is, that the detenue was not informed about his
right to make representation within stipulated time before the detaining authority
as well as government, thereby violating his statutory and constitutional rights. It
is translucently clear from perusal of the impugned detention order that the
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Detaining Authority has not communicated to the detenue the time limit, within
which, he could make a representation to it, till approval of the detention order
by the Government. 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 grounds 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.”
14. 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 grounds of detention 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. 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.
15. The last ground, which has been urged by the learned counsel for the
petitioner is that the Detaining Authority while formulating the grounds of
detention has failed to apply its mind, inasmuch as the grounds of detention are
almost replica of the police dossier. A perusal of grounds of detention and the
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police dossier reveals that the language and expressions used in both the
documents are almost similar to each other with intermixing of words here and
there. This clearly shows that the detaining authority has acted in a mechanical
manner. The Supreme Court has, in the case of Jai Singh and others vs. State
of Jammu and Kashmir, (1985) 1 Supreme Court Cases 561 clearly stated
that where the grounds of detention are verbatim reproduction of the dossier
submitted by the police, it goes on to show that there is non-application of mind
on the part of the detaining authority. In Rajesh Vashdev Adnani vs. State of
Maharashtra & Ors, (2005) 8 SCC 390, the Supreme Court again reiterated
that where the detention order is verbatim reproduction of the police dossier, the
said order suffers from non-application of mind on the part of the Detaining
Authority.
16. In the face of the aforesaid legal position, it can safely be stated that the
detaining authority in the instant case has acted in a mechanical manner while
passing the impugned order of detention rendering it unsustainable in law.
17. 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
2025:JKLHC-JMU:2241
10 HCP No.153/2024
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:
“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.”
18. Having regard to the facts, firstly, whole reliance of the detaining
authority on the stale case of the year 2008, in which the detenue stands
acquitted, secondly, not informing the detenue that he can make representation to
the detaining authority against the detention order; and thirdly time frame is not
specified in the detention order within which detenue can file representation
against the detention order disabling him of his right to file a representation
against his detention, in terms of Article 22(5) of the Constitution of India, it can
be safely held that it is established that the detaining authority has passed the
impugned detention order arbitrarily and mechanically, without application 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 renders it unsustainable and liable to be quashed.
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19. Viewed thus, the petition is allowed and the impugned detention Order
No.4th/DM/K/PSA of 2024 dated 07.11.2024, passed by respondent No. 2,
District Magistrate, Kisthwar, is hereby quashed. The detenue-Noor Din S/O
Habib Gujjar, R/O Kakerwagan, Tehsil Mughalmaidan, District Kishtwar is
directed to be released from the preventive custody forthwith, if not required in
any other case(s). No costs.
20. The record of detention be returned to the respondents through their
counsel.
21. Disposed of, accordingly, along with connected application(s).
(MA CHOWDHARY)
Jammu: JUDGE
11.08.2025
Raj Kumar
Whether the order is speaking? Yes
Whether the order is reportable? Yes
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