Jammu & Kashmir High Court

Reserved On: 28.08.2025 vs Union Territory Of J&K Through on 10 September, 2025

                                                                                2025:JKLHC-JMU:2762
                                                                          Sr. No. 118



          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           ATJAMMU
HCP No. 20/2025
                                                     Reserved on: 28.08.2025
                                                     Pronounced on:10.09.2025
     Mohd Jaffer Sheikh, Age 45 years                               .....Petitioner(s)
     S/O Ghulam Mohd Sheikh,
     R/O Nattas, Dool,
     Tehsil &District Kishtwar

                                Through :- Mr. S. S. Ahmed, Advocate
                          v/s
     1. Union Territory of J&K through                           .....Respondent(s)
        Commissioner/Secretary, Home Department,
        Civil Secretariat,Jammu.
     2. The Chairman, Advisory Board
        (Constituted Under J&K Public Safety Act, 1978)
        Mini Block, Civil Secretariat, J&K-180001.
     3. District Magistrate, Kishtwar.
     4. The Senior Superintendent of Police, Kishtwar.
     5. The Superintendent, District Jail, Kathua-184101.
                                Through :- Mr.Eishaan Dadhichi, GA

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

                                  JUDGMENT

1. District Magistrate, Kishtwar (hereinafter called 'Detaining Authority'),

in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety

Act, 1978, passed the detention Order No.6th /DM/K/PSA of 2024 dated

07.11.2024(for short 'impugned order'), in terms whereof the detenue-Mohd

Jaffer Sheikh S/O Ghulam Mohd Sheikh, R/O Nattas, Dool, Tehsiland District

Kishtwar (for short 'detenue')was detained under preventive detention, with a

view to prevent him for acting in any manner prejudicial to the 'security of the

State'.

2. The impugned detention order has been challenged through the medium

of the instant petition, being in breach of the provisions of Article 22(5) of the

Constitution of India read with Section 13(1) of the J&K Public Safety Act,

1978.

3. Petitioner contends that the Detaining Authority passed the impugned

detention order without there being due application of mind as the stale case of

the year 1997is made ground for passing the impugned detention order, besides

two FIRs, in which the petitioner is enlarged on bail and the trial is still going on

and some vague DDRs are lodged against the petitioner to falsely implicate him;

that whole of the material was neither supplied to the petitioner,not its contents

explained to the petitioner in the language he understands, which incapacitated

the petitioner in filing an effective and meaningful representation to the

detaining authority as well as government; that the petitioner was not informed

about his right of making representation to the detaining authority itself as also

the time period within which he can approach the competent authority, which

vitiated the impugned detention order.It has been contended that on 20.11.2024,

the detenue through his elder son, had made a representation before respondent

No.1, 2 as well as District Magistrate, Kishtwar, but the same has neither been

considered nor the result of the same communicated to the detenue, as reply

filed on behalf of the respondents is also conspicuously silent vis-à-vis

representation filed on behalf of the detenue; that there is no live or proximate

link between the alleged activities and the detention orderLastly, it is stated that

the impugned detention order be set aside and the writ petition be allowed.

4. 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 04.11.2024 submitted by

SSP Kishtwar; that the detenue is an Over Ground Worker (OGW) carrying out

anti national activities; that there is apprehension of terrorist incidents by the

detenue in connivance with the terrorists upon the project infrastructure

associated with Pakal-Dul HEP Dool, as he himself is engaged in the said

project; that detenue might be sharing information related to the movement of

the security forces with the active militants of the area and is also provoking the

youth of his native place in the name of Jihad; that the criminal activities of the

detenue are highly prejudicial to the security of the Union Territory of J&K and

its adjoining areas, therefore, warrants preventive measures against him; that the

substantive law has failed to desist the detenue from indulging in such anti

national activities; 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 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

he was also informed about his right to make a representation to the Government

as well as detaining authority; that the representation filed by the detenue was

duly considered and rejected and result whereof was conveyed to the detenue

through jail authorities; that the respondents, in order to lend support to their

contentions, have produced the detention record.

5. Heard learned counsel for both the sides at length, perused the detention

record and considered the record.

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

in following cases registered at Police Station Kishtwar:-

1) FIR No. 54/1997; U/Secs 364/302 RPC, 3/25 IA Act.

2) FIR No. 21/2015; U/Secs 458/382 RPC, 7/25 IA Act.

3) FIR No.230/2019; U/Secs 13/18/19/38/39 UAPA.

Besides above FIRs, following 04DDRshave been recordedagainst the petitioner

at P/S Kishtwar and PP Dool:

i) DDR No.05 dated 16.05.2024;

ii) DDR No.19 dated 26.06.2024;

iii) DDR No. 13 dated 30.10.2024, at PP Dool,and

iv) DDR No.22 dated 30.10.2024 at P/S Kishtwar;

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

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

7. Though 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 the time period within which he

can approach the detaining authority as well as government against

the order of detention by way of filing representation;

ii) that the stale cases/FIRs of the year 1997, 2015 and 2019 are made

basis for passing the detention order which has no proximate link;

iii) That representation filed by the petitioner to the respondents was

not considered nor outcome conveyed to the petitioner;and

iv) That the entire material forming the basis of the grounds of

detention was neither supplied nor explained to him in the language

he understands.

8. First ground, as argued is that the detenue was not informed the time

period within which he can make representation before the detaining authorityas

well as the government, thereby, violating his statutory and constitutional rights.

Bare reading of the communication No.DM/K/2024-25/5201-05 dated

07.11.2024issued by the District Magistrate, Kishtwar to the detenue, would

show that as „you may also make a representation against the order of detention

mentioned above to the undersigned and to the Government, if you so desire‟.It

is evident from a perusal of the impugned detention order that the Detaining

Authority has not communicated to the detenue the aforesaid fact. The

intimation to the detenue the time period within which he can approach the

detaining authority for revocation of the impugned detention order is

conspicuously missing.

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 communicated to the detenue, at the first hand, that he has right to

file representation before the detaining authority as well and secondly, 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 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 expeditiously. Since the petitioner, time and again, denies that he has

been informed of the time limit and his right to file representation to the

detaining authority, the respondents ought to have filed an affidavit of the

executing officer to controvert the allegations, which admittedly has not been

done. 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.

11. So far as the second ground that the stale cases/FIRs of the year 1997,

2015 and 2019 are made basis for passing the detention order which has no

proximate link is concerned, perusal of the grounds of detention would show

that in case FIR No. 54/1997 U/Secs 364/302 RPC, 3/25 IA Act, the petitioner

stood acquitted in the case on 24.04.2004. So far as the case FIR No. 21/2015;

u/s 458/382 RPC, 7/25 IA Act and case FIR No. 230/2019; U/Ss 13/18/19/38/39

UAPA registered at Police Station Kishtwar are concerned, it is admitted

position that the petitioner released on bail has been facing the trial. The reliance

on the 28 years old case, in which the detenue stood acquitted and enlarged on

bail and facing trial in 10 and 6 years old cases is not permissible being stale,

irrelevant, snapping any proximate and live link. (See: Sama Aruna V. State of

Telegana & Ors. (2012) 12 SCC 150).

12. So far as DDR entries recorded against the detenue are concerned, a

perusal of the ground of detention would show that those have not culminated in

any criminal cases. Merely recording DDRs alleging no specific acts cannot be

the ground to detain a person. It is surprising that if the acts mentioned in the

DDR entries are criminal acts and are cognizable in nature, then why the State

has not filed any FIR. 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 DDRs make out any criminal offence,

what prevented the State to file a First Information Report is shrouded in

mystery.

13. The third ground to assail the impugned order is that representation of

the detentue was neither considered nor result thereof conveyed to the detenue.

In the Counter affidavit filed on behalf of respondent no. 3, nothing was

whispered that any representation was received from the detenue, yet the record

produced by the respondents would reveal that vide communication dated

26.11.2024 by the Additional District Magistrate, Kishtwarhas forwarded the

representation of the petitioner to the Principal Secretary, Home Department

with copy to the SSP, Kishtwarfor necessary action onthe representation. The

record is silent with regard to the disposal of the representation and its

communication to the petitioner, which thus vitiates the impugned detention

order.

14. The next 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.3 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 81 leaves

comprising grounds of detention along with notice. Since the petitioner has

denied that entire material has 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 same has not been done, thus vitiating the impugned detention order. It can,

thus, safely be assumed that all the material, was not supplied to the petitioner

on the basis of which detention order is passed.

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

Maharashtra &Ors. v. Santosh Shanker Acharya‟ reported asAIR 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 and non-supply thereof renders

the detention order illegal and unsustainable. Ratio of the judgments (supra) and

the principle of law deduced there from 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 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.

16. 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."

17. Having regard to the facts, firstly, that not informing the detenue that

he can make representation to the detaining authority within specified time

frame, against the detention order; secondly, reliance on stale cases/FIRS of the

year 1997, 2015 and 2019 to pass detention order having no proximate and live

link; thirdly, non-communication of the result of the representation to the

detenue; fourthly, non supply of whole of the material and not explaining the

contents of the grounds of detention along with other relevant documents, which

incapacitated the petitioner to file effective and meaningful representation to the

detaining authority as well as government; fifthly, 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