Jammu & Kashmir High Court - Srinagar Bench
Jahangir Ahmad Malik vs Ut Of J&K & Ors on 12 February, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 12.12.2024
Pronounced on: 12.02.2025
HCP No.27/2023
JAHANGIR AHMAD MALIK ...Petitioner(s)
Through: - Mr. G. N. Shaheen, Advocate, with
Mr. Asif Nabi, Advocate.
Vs.
UT OF J&K & ORS ...Respondent(s)
Through: -Mr. Mubashir Majid Malik, Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
1) Through the medium of present petition, the petitioner has assailed
detention order bearing No.169/DMS/PSA/2023 dated 17.07.2023,
issued by District Magistrate, Shopian (for brevity "detaining
authority"). In terms of the aforesaid order, Jahangir Ahmad Malik son
of Abdul Rahim Malik resident of Pehlipora Pinjoora Tehsil Shopian
District Shopian (for short "detenue") has been placed under preventive
detention and lodged in District Jail, Baramulla.
2) The petitioner has contended that the allegations mentioned in the
grounds of detention have no nexus with the detenue and that the grounds
of detention are vague, non-existent, on the basis of which no prudent
man can make an effective representation. It has been further contended
that the procedural safeguards have not been complied with in the instant
case, inasmuch as whole of the material that formed basis of the
impugned detention order has not been supplied to the petitioner. It has
been also contended that the representation submitted by the petitioner
against his detention has not been considered, as no result of
consideration thereof has been conveyed to the petitioner.
3) The respondents have resisted the petition by filing their reply
affidavit, wherein they have contended that the activities of the detenue
are highly prejudicial to the security of the UT/Country. 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 has been further
contended 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 also averred 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 produced the detention
record to lend support to the stand taken in the counter affidavit.
4) I have heard learned counsel for parties and perused the record.
5) 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 following grounds:
(i) That representation of the petitioner against the
impugned order of detention has not been
considered by the respondents thereby violating
his statutory and constitutional rights.
(ii) That the detenue has not been provided the whole
of the material, which prevented him from making
an effective representation against his detention.
6) The first ground projected by learned counsel for the petitioner is
that the that representation of the petitioner against the impugned order
of detention has not been considered by the respondents thereby
violating his statutory and constitutional rights.
7) In the above context, the petitioner has placed on record a copy
of the representation dated 07.08.2023 along with his writ petition
(Annexure-IV). He has also placed on record postal receipts dated
09.08.2023, which indicates that the representation has been sent to the
Principal Secretary to Government, Home Department and District
Magistrate, Shopian.
8) The record produced by the respondents reveals that the
representation of the petitioner had been placed before the Advisory
Board but the same has been rejected on 21.02.2023. Thus, it is an
admitted fact that the respondents had received the representation of the
petitioner against the impugned order of detention but result thereof has
not been conveyed to the petitioner. 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 coming forth 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
9) So far as the next ground of challenge is concerned, a perusal of
the material on record reveals that the petitioner has received only
grounds of detention consisting of five leaves. That means, copies of
PSA warrant, notice of detention and order of detention have not been
provided to the petitioner. Even the copy of the dossier of detention has
not been supplied to the petitioner. Thus, the contention of the petitioner
that whole of the material relied upon by the detaining authority, while
framing the grounds of detention has not been supplied to him, appears
to be well-founded. Obviously, the petitioner has been hampered by non-
supply of these vital documents in making an effective representation
before the Advisory Board. Thus, vital safeguards against arbitrary
use of law of preventive detention have been observed in breach by
the respondents in this case rendering the impugned order of
detention unsustainable in law.
10) It needs no emphasis that the detenue cannot be expected to make
an effective and purposeful representation which is his constitutional
right guaranteed under Article 22(5) of the Constitution of India, unless
and until the material, on which the detention is based, is supplied to the
detenue. The failure on the part of detaining authority to supply the
material renders the detention order illegal and unsustainable in law.
While holding so, I am fortified by the judgments rendered in Sophia
Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999
SC 3051) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC
318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad
Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira
Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184).
11) Viewed thus, the petition is allowed and the impugned order of
detention is quashed. The detenue is directed to be released from
preventive custody forthwith provided he is not required not required in
connection with any other case.
12) The detention record be returned to the learned counsel for the
respondents.
(Sanjay Dhar)
Judge
SRINAGAR
12.02.2025
"Bhat Altaf-Secy"
Whether the order is speaking: Yes/No
