Jammu & Kashmir High Court - Srinagar Bench
Mohammad Ishaq Tantray 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: 18.12.2024
Pronounced on: 12.02.2025
HCP No.86/2024
MOHAMMAD ISHAQ TANTRAY ...Petitioner(s)
Through: - Mr. T. H. Khawaja, 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.05/DMA/PSA/DET/2024 dated 28.02.2024,
issued by District Magistrate, Anantnag (for brevity "detaining
authority"). In terms of the aforesaid order, Mohammad Ishaq Tantray
(for short "detenue") has been placed under preventive detention and
lodged in Central Jail, Jammu Kothbhalwal, with a view to prevent him
from indulging in activities which are prejudicial to the security of the
State.
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 State/UT. 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 ground 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.
6) In the above context, the petitioner has placed on record a copy
of the representation dated 25.03.2024 along with his writ petition
(Annexure-III). He has also placed on record postal receipts dated
26.03.2023, which indicates that the representation has been sent to the
Principal Secretary to Government, Home Department and District
7) 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 03.04.2024. 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. In fact, the record shows that the
Home Department of the Government has vide its letter dated
10.06.2024 conveyed to the Detaining Authority about the rejection of
the representation but 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.
8) 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.
9) 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.
10) 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
