Jammu & Kashmir High Court

Abrar Afzal vs Ut Of Jammu & Kashmir Through on 26 August, 2025

                                                                         2025:JKLHC-JMU:2487
                                                         Serial No. 89


        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                 Reserved on : 14.08.2025
                                                 Pronounced on: 26.08.2025
HCP No. 147/2024

Abrar Afzal, Age 26 years                                      .....Petitioner(s)
S/O Mohd Afzal
R/O Village Panghai,
Tehsil Thanamandi, District Rajouri
Through sister Ifret Naz

                     Through: Mr. Muzaffar Iqbal Khan, Advocate
                              Mr. Mazher Ali Khan, Advocate.

                   Vs

1. UT of Jammu & Kashmir through
   Principal Secretary, (Home),
   Civil Secretariat, Jammu.
2. District Magistrate, Rajouri.
3. Superintendent, Central Jail, Jammu
                                                            ..... Respondent(s)

                     Through: Mr. Dewakar Sharma, Dy. AG.

CORAM:       HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                                 JUDGMENT

01. Petitioner-Abrar Afzal, S/O Mohd Afzal, R/O Village Panghai, Tehsil

Thanamandi, District Rajouri (for short 'the detenue') challenged the detention

Order No.DMR/INDEX/07 of 2024 dated 31.10.2024 (impugned order), issued

by respondent No.2, District Magistrate, Rajouri (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 'public order'.

02. Petitioner contends that the Detaining Authority passed the impugned

detention order without there being due application of mind as only a single 2025:JKLHC-JMU:2487

complaint U/Ss 107/151 CrPC was made the basis of passing the impugned

detention order; 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, and non supply of whole of the material, which

incapacitated him to file effective and meaningful representation against his

detention order; that the allegations against the petitioner are false and the

sponsoring agency suppressed the vital fact that the petitioner was earlier

detained under PSA in the year 2022 on the basis of these very 6 FIRS and two

complaints but now again on the basis of single false complaint registered

against the petitioner, he was taken into preventive detention for the sake of

putting him behind bars which is illegal and unsustainable in the eyes of law;

that the grounds of detention are replica of police dossier, which shows that the

impugned detention order is passed mechanically without proper application of

mind.

03. The respondents have contested the writ petition by filing counter

affidavit of the detaining authority. In the counter affidavit, it has been

submitted that the impugned order of detention has been passed by the detaining

authority after carefully analyzing the dossier dated 10.08.2024 submitted by

SSP Rajouri; 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 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 2025:JKLHC-JMU:2487

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 the

petitioner was detained earlier also under Public Safety Act but he again

indulged in the activities which are prejudicial to the maintenance of public

order, so his detention was imperative; 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.

04. Heard leaned counsel for the parties at length, perused the record and

considered the matter.

05. The detention record, as produced, reveals that the detenue was involved

in following cases registered at different Police Stations:-

1) FIR No. 47/2019 U/Sec 452/323/147/336/427/109 RPC

2) FIR No. 115/2022 U/Secs 307/341/323 RPC

3) FIR No.11/2022 U/Secs 341/353/332/504 IPC

4) FIR No. 60/2022 U/Secs 307/341/323/147/336/504/506 IPC

5) FIR No. 206/2019 U/Secs 379/206 RPC

6) FIR No.55/2021 U/Secs 366/376/109 IPC

Besides above FIRs, following three complaints are also registered against the

petitioner at P/S Thanamandi:

       i)     Complaint U/S 107/151/110 CrPC

       ii)    Complaint U/S 107/151 CrPC

       iii)   Complaint U/S 107/151 CrPC
                                                                             2025:JKLHC-JMU:2487

Involvement of the detenue in the aforementioned cases appears to have heavily

weighed with the detaining authority, while passing impugned detention order.

06. Although detenue has raised many grounds 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 non supply of whole material, more particularly, record pertaining

the proceedings u/s 107/151 CrPC which was made the basis for passing

the impugned detention order, thus, vitiated the impugned detention

order; and

iii) that the grounds of detention are replica of dossier.

07. 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. In a case of National Security Act, titled "Jitendra Vs. Dist.

2025:JKLHC-JMU:2487

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."

08. 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. 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.

09. Perusal of the case file would show that the petitioner, on earlier occasion

had also been detained under the preventive detention vide Order

No.DMR/INDEX/01 of 2022 dated 15.11.2022, which was challenged by the

petitioner vide WP(Crl) No. 80/2022 titled 'Abrar Afzal v. UT of J&K &

Ors' before this court, in which the detaining authority has detained the

petitioner on the basis of above six FIRs and two complaints, and now the same

six FIRs and complaints except one i.e. Compliant U/s 107/151 CrPC registered

at P/S Thanamandi has been made the basis for detaining the petitioner again 2025:JKLHC-JMU:2487

vide impugned detention order dated 31.10.2024. In a case titled as "C. B.

Kahar vs. N. L. Kalna" reported in AIR 1989 SC 1234, the hon'ble Supreme

Court held in that grounds of detention of the earlier detention 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 of detention. Para 12 of the judgment (supra) is reproduced as:-

"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."

10. Besides above, it is alleged by the petitioner that he was not supplied the

entire material/record viz. pertaining to Section 107/151 CrPC on the basis of

which he was detained under PSA. Since the petitioner has all along denied that

he has received any material, more particularly, the material pertaining to

Section 107/151 CrPC, the respondents ought to have filed an affidavit of the

Executing Officer to the aforesaid extent to controvert the above allegations,

which is ostensibly not been done by the respondents in the instant case.

Therefore, in the considered opinion of this court, the petitioner was prevented

from making effective and meaningful representation to the competent authority

in view of insufficient material provided to him.

2025:JKLHC-JMU:2487

11. Hon'ble the Supreme Court of India in a case titled 'State of

Maharashtra & Ors. v. Santosh Shanker Acharya' reported as AIR 2000 SC

2504 quashed the detention order on the ground, that the detenue was not

supplied the copies of material from which detention order was made, which

amounted to denial of representation to the detenue and infraction of a valuable

constitutional right guaranteed to the detenue under Article 22 (5) of the

Constitution of India. A Co-ordinate Bench of this Court at Srinagar in a case

titled "Hilal Ahmad Khuroo Vs. Union Territory of J&K & Ors. [WP (Crl.) No.

80/2022, decided on 10.08.2022] has held, that respondents are duty bound to

provide to the petitioner/detenue the material as regards the proceedings u/s

107/151 of the Cr.P.C and non-supply thereof renders the detention order illegal

and unsustainable. Ratio of the judgments (supra) and the principle of law

deduced therefrom are squarely applicable to the facts of the case in hand. In the

instant case, on perusal of the detention record, it is discernable, that the

essential material/record as regards to the proceedings u/s 107/151 of Cr.P.C

against petitioner forming the edifice for issuance of impugned detention order

has not been supplied to the detenue, therefore, the petitioner/detenue's

constitutional right guaranteed to him under Article 22(5) Constitution of India

r/w Section 13 of J&K PSA 1978 has been infringed/violated, which renders the

impugned detention order illegal and legally unsustainable.

12. The third ground, which has been urged by the learned counsel for the

detenue 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 xerox copy of the police dossier. A perusal of grounds of detention and

the police dossier reveals that the language and expressions used in both the 2025:JKLHC-JMU:2487

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 and others, (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.

13. 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:

"The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal 2025:JKLHC-JMU:2487

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."

14. 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, non supply of

whole of the material which incapacitated the petitioner to file effective and

meaningful representation to the detaining authority as well as government;

thirdly, non application of mind by the detaining authority, in as much as the

grounds of detention are almost xerox copy of the police dossier, it can safely be

held that the detenue was disabled to exercise his right to file a 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 of mind and the constitutional and statutory