1. Petitioner namely Mohd Rafiq S/O Kalu Khan R/O Garh Malti Tehsil
2. The detenue has raised many grounds to assail the impugned order. It is
his contention that whole of the material relied upon by the detaining authority to
pass the detention order was neither supplied nor explained to the detenue in the
revocation; that the grounds of detention are replica of the police dossier; that the
has not been considered till date. Lastly, it is prayed that the petition be allowed
3. The respondent No.2, in his counter affidavit, has controverted the
transportation, internet facility, food and shelter to their terrorists. It is further
resides, which made it imperative for detaining authority to detain detenue under
that he can make representation to the Govt. as well as detaining authority
against the detention order, if he so desires; that all the constitutional or statutory
safeguards were observed in letter and spirit. Lastly, it is prayed that the petition
been passed as per the provisions of J&K Public Safety Act. The respondents
4. Heard learned counsel for the parties at length, perused the detention
5. The detention record, as produced, reveals that the detenue was bound of
09.01.2025 was also recorded against the detenue at P/S Billawar.
weighed with the detaining authority, while passing impugned detention order.
6. Learned counsel for the detenue, while seeking quashment of the
(IV) that grounds of detention are replica of police dossier;
7. The right to make representation 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 the order of
detention at the earliest opportunity. Thus, a duty is cast upon the detaining
authority or the government to consider the said representation at the earliest
opportunity. Failure to decide the representation of a detenue within a reasonable
time in an expeditious manner, strikes at the valuable right of a detenue
emanating from the provisions of Section 13 of the Jammu & Kashmir Public
Safety Act. This breach in the statutory safeguard, is sufficient to vitiate the
impugned order of detention.
8. It is translucently clear from a perusal of the impugned detention order
that the Detaining Authority has not communicated to the detenue that he can
make representation to the detaining authority against the impugned detention
order for its revocation. The fact of communicating the detenue of his right to
approach the detaining authority itself for revocation of the impugned detention
order in the present case, is conspicuous by its absence. A bare reading of the
communication No.DMK/JC/2025/3790-94 dated 30.01.2025 issued by the
District Magistrate, Kathua to the detenue, shows that 'the detenue may make
representation to the Government against the order, within stipulating time
period, if he so desires'.
9. 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."
10. 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 informed the detenue 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. It is 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. There
is, therefore, sound reason so as to vitiate the order. On this count alone, the
impugned detention order cannot sustain and is liable to be quashed.
11. The other ground urged by the learned counsel for the detenue that the
entire material forming the basis of the grounds of detention was neither supplied
nor explained to him in the language he understands, has been contradicted by
respondent No.2 in its affidavit. The detention record produced by the
respondents contains report of execution as also receipt executed by the detenue.
According to the receipt, the detenue has received a total of 21 leaves comprising
copy of detention order, notice of detention, grounds of detention and other
documents. Since the detenue has denied that entire material has not been
supplied and explained to him in the language he understands, the respondents
ought to have filed affidavit of executing officer in this regard, which on the
perusal of the record would show that though a routine affidavit has been filed
but the affidavit stating that the detenue has been supplied the entire material
forming the basis of the grounds of detention is not there on the record, thus,
vitiating the impugned detention order. It can, thus, safely be assumed that whole
of the material was not supplied to the petitioner on the basis of which impugned
detention order is passed.
12. 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, based on which detention order was passed,
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.
13. So far as the DDR entry (supra) recorded at Police Station Billawar is
concerned, it is an admitted case that same has not culminated in any criminal
cases. Merely recording DDR/complaint 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 complaint/DDR entry, are criminal
acts and are cognizable in nature, then why the Union Territory 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 DDR make out any criminal
offence, what prevented the Union Territory to file a First Information Report is
a mystery.
14. The last 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 photo-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
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.
15. 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
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."
16. Having regard to the facts, firstly, that not informing the detenue that he
can make representation to the detaining authority and that too within certain
time-limit, secondly, non-supply of whole of the material, which in turn,
incapacitated the detenue to file effective and meaningful representation to the
detaining authority as well as government; thirdly, non application of mind by
the detaining authority, inasmuch as the grounds of detention are not only vague
but almost replica 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 safeguards available to
the detenue were also observed in breach and trampled, vitiating the impugned
detention order, which render it unsustainable and liable to be quashed.
17. Viewed thus, the petition is allowed and the impugned detention Order
No. PSA/143 dated 30.01.2025, passed by respondent No. 2, District Magistrate,
Kathua, is hereby quashed. The detenue-Mohd. Rafiq is directed to be released
from the preventive custody forthwith, if not required in any other case(s). No
costs.
18. The record of detention be returned to the respondents through their
counsel.
19. Disposed of, accordingly, along with connected application(s).
Jammu: (MA CHOWDHARY)
09.10.2025 JUDGE
Surinder
Whether the order is speaking? Yes
Whether the order is reportable? Yes
I pronounce this judgment today, in terms of Rule 138(3) of the J&K
High Court Rules, 1999.
Jammu: (VINOD CHATTERJI KOUL)
09.10.2025 JUDGE
