Jammu & Kashmir High Court - Srinagar Bench

Akash Ahmad War vs Ut Of J&K &Ors on 14 August, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR
                                                    Reserved on: 28.07.2025
                                                    Pronounced on: 14.08.2025

                               HCP No.37/2024

AKASH AHMAD WAR                                          ...Petitioner(s)
             Through: -      Mr. S. T. Hussain, Sr. Advocate, with
                             Ms. Nida Nazir, Advocate.
Vs.

UT OF J&K &ORS.                                           ...Respondent(s)
             Through: -      Mr. Faheem Nisar Shah, GA, vice
                             Mr. Ilyas Nazir Laway, GA.

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

                                     JUDGMENT

1) By the medium of instant petition, the petitioner has

challenged the legality and veracity of the order

No.01/DMA/PSA/DET/2024 dated 11.01.2024, issued by District

Magistrate, Anantnag - respondent No.2 herein, in terms whereof,

Akash Ahmad War (hereinafter referred to as the detenue), has

been placed under preventive detention so as to prevent him from

acting in any manner prejudicial to 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 been contended that the grounds of

detention are vague on the basis of 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, inasmuch as whole of the

material which formed basis of the impugned detention order has

not been supplied to the petitioner. That the grounds of detention

are non-existent and stale and that the representation filed by

him has not been considered by the respondents.

3) Upon being put to notice, the respondents appeared through

their counsel and filed their reply affidavit, wherein they have

contended that the activities of detenue are highly prejudicial to

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 is contended that the

grounds urged by the petitioner are legally misconceived, factually

untenable and without any merit. 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 further claimed

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 placed reliance on various

judgments of the Supreme Court. The respondents have produced

the detention record to lend support to the stand taken in the

counter affidavit.

4) 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 submitted by the detenue against his detention

through his father has not been considered as result of

consideration, if any, has been conveyed to him, thereby

rendering the detention order unsustainable in law.

5) The record produced by the respondents reveals that the

representation dated 21.01.2024 of the petitioner was forwarded

by the Home Department to the Special Director General, CID,

J&K, on 29.01.2024 for his comments. It is also revealed that

upon receipt of report dated 11.04.2024 from the CID, the

representation of the petitioner has been rejected by the

Government and the same has been conveyed by the Government

to the District Magistrate vide communication dated 16.05.2024.

However, the respondents have not placed on record anything to

show that the order of rejection of representation was conveyed to

the petitioner. It is not forth coming 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 vs. District Magistrate, Jabalpur

and others,(2021) 20 SCC 98, 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.

6) Apart from the above, the aforesaid representation has been

received by the respondents probably in the fourth week of

January, 2024, which is clear from communication dated

29.01.2024, addressed by the Home Department to the Special

D.G. of Police, CID, J&K, that forms part of the detention record.

However, the same has been decided on 16.05.2024, after a

period of about more than four months. The question that arises

for determination is, as to whether consideration of

representation after a period of more than three four 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 Sarabjeet Singh Mokha's case (supra). It would be

apt to refer to observations made by the Supreme Court in para 47

of the judgment, which are reproduced as under:-

"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