[Cites 14, Cited by 0]

Jammu & Kashmir High Court

Reserved On: 05.02.2026 vs Ut Of J&K & Ors on 20 February, 2026

Author: Sanjay Dhar

Bench: Sanjay Dhar

                                                                         2026:JKLHC-JMU:470



    IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                           HCP No. 157/2025

                                            Reserved on: 05.02.2026
                                         Pronounced on : 20.02.2026
                                           Uploaded on : 20.02.2026
                                     Whether the operative part or full
                                       judgment is pronounced: Full

Koushal Sharma
                                                             ....Petitioners

               Through:-       Mr. Jagpaul Singh, Advocate.

                           V/s

UT of J&K & Ors
                                                         .....Respondents

               Through:-       Mrs. Monika Kohli, Sr. AAG.
\

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

(JUDGMENT)

01. The petitioner, through the medium of the present

petition, has challenged order No. PITNDPS 61 of 2025 dated

10.10.2025 (hereinafter to be referred to as ("impugned order

of detention") issued by respondent No. 2-Divisional

Commissioner, Jammu whereby he has been placed under

preventive detention with a view to prevent him from indulging

in activities relating to illicit traffic of Narcotic Drugs and

Psychotropic Substances.

02. The petitioner has assailed the impugned order of

detention on the grounds that the said order has been issued

by respondent No. 2 in an arbitrary manner without

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application of mind. It has been contended that the petitioner

has not been apprised about his right to make a

representation before the Central Government. It has been

further contended that petitioner is a teenager and by passing

the impugned order of detention, respondent No. 2 has

misused his powers. It has also been contended that DDR

reports mentioned in the grounds of detention do not relate to

any activities pertaining to illicit trafficking of drugs, therefore,

the same could not have been made the basis for passing the

impugned order of detention.

03. It has also been contended that the petitioner has

already been booked in two FIRs and there were no compelling

reasons for the detaining authority to pass the impugned order

of detention instead of dealing with the petitioner under

normal criminal law. It has been further contended that

translated version of the material relied upon for passing the

impugned order of detention has not been furnished to him. It

has also been contended that the allegations made in the

grounds of detention are vague, lacking in material particulars

and on the basis of such allegations, no effective

representation could have been made by the petitioner.

04. It has been further contended that an application

for cancellation of bail of the petitioner had already been

moved before the court of learned Additional Sessions Judge,

Udhampur but without waiting for final outcome of the said

application, the impugned order of detention has been passed.

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05. The petition has been contested by the respondents

by filing counter affidavit of the detaining authority viz

respondent No. 2. In the counter affidavit, it has been

submitted that representation of the petitioner was considered

by respondent No. 2 and the same was rejected. It has been

submitted that the information regarding rejection of

representation of the petitioner was duly conveyed to him

through Superintendent, Central Jail, Kot Bhalwal, Jammu. It

has been further contended that the impugned order of

detention has been passed in consonance with law.

06. It has been submitted that after perusal of the

record, the detaining authority came to the conclusion that it

was imperative to detain the petitioner because after getting

bail, he was again involved in illicit trafficking of narcotic

drugs, which was posing serious threat to the public order as

well as to the health and welfare of the people. It has been

submitted that ordinary law has failed to detain the petitioner

from indulging in similar activities.

07. According to the respondents, whole of the material,

on the basis of which grounds of detention have been

formulated, has been provided to the petitioner and contents of

the same have been explained to the detenue in Hindi and

Dogri languages, which he understands. It has been further

submitted that the petitioner was informed about his right to

make representation before the Government as well as before

the detaining authority. It has been further submitted that all

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the statutory and legal requirements were followed by the

respondents while executing the detention order against the

petitioner. The respondents have also produced detention

record to lend support to their contentions.

08. I have heard learned counsel for the parties and

perused record of the case including the detention record

which has been produced by the respondents.

09. Learned counsel for the petitioner has raised

numerous grounds for assailing the impugned order of

detention but his main focus was on the ground that his

representation against the impugned order of detention has

not been considered by the detaining authority viz respondent

No. 2. It has also been contended that respondent No. 1 has

not considered the representation of the petitioner but has

forwarded the same to the Advisory Board, which has no

jurisdiction to either reject or accept the representation.

10. A perusal of the detention record reveals that the

petitioner has made representation dated 18.10.2025, which

has been addressed to the Home Department and a copy

thereof has been sent to respondent No. 2-the detaining

authority for its consideration. The record further reveals that

the representation addressed to the Government was

forwarded to the Advisory Board in terms of communication

dated 23.10.2025 addressed by the Home Department to the

Advisory Board. Vide order dated 03.11.2025, the Advisory

Board rejected the representation of the petitioner whereafter

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the impugned order of detention issued against the petitioner

came to be confirmed by the Government in terms of order

dated 14.11.2025.

11. The record further reveals that after confirmation of

the impugned order of detention, the Government sought

comments of the CID regarding representation of the petitioner

vide its communication dated 17.11.2025 and on 26.11.2025,

the Government rejected the representation of the petitioner

and addressed a communication to Divisional Commissioner,

Jammu with a copy to Superintendent, Central Jail, Kot

Bhalwal, Jammu for conveying the information to the

petitioner. It seems that the information regarding rejection of

representation of the petitioner has been conveyed to him

through concerned jail.

12. In the face of the aforesaid facts, which have

emanated from the detention record, the contentions raised by

the petitioner have to be analyzed in the light of the settled

legal position on the subject so as to determine as to what

would be the effect upon the impugned order of detention in

case the representation against the same has been considered

and rejected by the Government but no consideration to the

representation has been accorded by the detaining authority.

13. In the above context, legal position is well settled, in

that, not only the Government but even the detaining authority

has to consider the representation against the impugned order

of detention.

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14. The Supreme Court has, in A.C. Razia Vs. Govt.

of Kerala and Ors, (2004) 2 SCC 621 in the context of the

COFEPOSA Act, the relevant provisions of which are in pari

materia with the provisions of PITNDPS Act, made the following

observations:

"12. The combined effect of the constitutional and statutory provisions from the point of view of the detenu's right to make the representation is to provide more than one forum to re-examine or review the case of the detenu and to afford him various means of redressal of his grievance. Thus, the matter could be examined by (i) the Advisory Board (ii) the detaining authority and (iii) the State or Central Governments acting under Section 11 or on receipt of Advisory Boards opinion. This is apart from the power of the Central Government to examine the validity of detention acting suo motu on receipt of report under Section 3(2). Under Section 11 - which is of immediate relevance in the present case, the Central Government has the power to revoke the orders made by

(i) the State Government, (ii) an officer specially empowered by the State Government and (iii) an officer specially empowered by the Central Government. The order passed by an officer specially empowered by a State Government can be revoked by the State Government as well.

"The conferment of this power on the Central and the State Governments does not, however, detract from the power that is available to the authority that has made the order of detention to revoke it." This is ensured by the words without prejudice to the provisions of Section 21 of the General Clauses Act" in sub-section (1) of Section 11 (vide observations of the Constitution Bench in paragraph 22 in the case of Kamlesh Kumar vs. Union of India)."

15. Again the Supreme Court in the case of Ankit

Ashok Jalan Vs. Union of India and Ors, (2020) 16 SCC 127

has clearly held that detaining authority has to consider

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representation independently without waiting for report of the

Advisory Board. The Supreme Court further held that it is a

well settled law that representation can be made to the

detaining authority and the said authority is vested with power

to consider the representation.

16. From the aforesaid position of law, it is clear that right

to make a representation to the detaining authority or to the

Government is an integral part of Article 22(5) of the

Constitution and, therefore, once it is shown that the

representation made by a detenue to the detaining authority

has not been considered at all, it amounts to infringement of

right of a detenue guaranteed under Article 22(5) of the

Constitution and the same results in making the impugned

order of detention unsustainable in law.

17. In the present case, the record shows that copy of the

representation was addressed to the detaining authority and it

has been received by the said authority even before the

detention order was confirmed by the Government, therefore,

the detaining authority by not taking any action on the

representation of the petitioner has abdicated its duty which

has resulted in infringement of constitutional right of the

petitioner, as such, the impugned order of detention is liable to

be set aside on this ground alone.

18. It also appears that the Government has not properly

approached the representation of the petitioner while

considering and rejecting the same. The record shows that

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representation of the petitioner was received by the

Government before the matter was referred to Advisory Board.

It was incumbent upon the Government to accord

consideration to the representation of the petitioner before

referring the matter to the Advisory Board. Instead of doing

so, the Government sent the representation to the Advisory

Board and the Board instead of rendering its opinion about the

fate of the representation, proceeded to reject the same which

is beyond its jurisdiction.

19. In the above context, reference may be made to the

judgment of the Supreme Court in the case of SK. Sekawat

Vs. State of West Bengal, (1975) 3 SCC 249, wherein the

Supreme Court has discussed the issue as to in what manner

a representation received from a detenue is to be dealt with.

Para 3 of the said judgment is relevant to the context and the

same is reproduced as under:

"The petitioner, on these facts, contended that the order confirming the detention of the petitioner having been passed by the State Government without considering the representation of the petitioner, the detention of the petitioner was unlawful as being in violation of Art. 22(5) of the Constitution and section 7 of the Maintenance of Internal Security Act, 1971. This contention has great force and it must result in the detention of the petitioner being set aside. It is now well settled by a decision of five judges of this Court in Jayanarayan Sukula v. State of West Bengal(1) that the peremptory language of Art. 22(5) of the Constitution and section 7 of the Act makes it obligatory that the State Government should consider the representation of the detenu "as soon as it is received by it". The requirement of Art. 22(5) of the Constitution that

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the authority making the order of detention should afford the detenu the earliest opportunity of making a representation against the order of detention would become illusory if there were no corresponding obligation on the State Government to consider the representation of the detenu as early as possible. It is not enough for the State Government to forward the representation to the Advisory Board while seeking its opinion as to whether there is sufficient cause for the detention of the detenu. The State Government must itself consider the representation of the detenu and come to its own conclusion whether it is necessary to detain the detenu.

If the State Government takes the view, on considering the representation of the detenu, that it is not necessary to detain him, it would be wholly unnecessary for it to place the case of the detenu before the Advisory Board. The requirement of obtaining the opinion of the Advisory Board is an additional safeguard for the detenu over and above the safeguard afforded to him of making a representation against the order of detention. The opinion of the Advisory Board, on a consideration of the representation, is no substitute for the consideration of the representation by the State Government. This Court, speaking through Ray, J., as he then was, in Jayanarayan Sukul v. State of West Bengal, (supra) enunciated the following four principles to be followed in regard to the representation of a detenu:

"First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State.

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Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu." It is possible that sometimes the representation of the detenu may be received by the State Government after the case of the detenu has been referred to the Advisory Board. In such a case, so long as the representation is received within thirty days from the date of the detentions the State Government would be bound to forward it to the Advisory Board. But a question may arise as to what would be the duty of the State Government where the representation is received after the expiration of thirty days from the date of detention. It was contended on behalf of the State that in such a case there would be no obligation of the State Government to send the representation to the Advisory Board, because the State Government being bound to place the case of the detenu before the Advisory Board within thirty days from the date of detention, if the representation is not received within the period of thirty days, there can be no obligation of the State Government to forward it to the Advisory Board, We do not wish to express any opinion on this contention as it does not arise for consideration on the facts of the present case. Here the representation of the petitioner was received by the State Government after the Advisory Board had made its report and there could then be no question of sending the representation to the Advisory Board. But the State Government had not yet confirmed the order of detention and it was, therefore, bound to consider the representation of the petitioner. It is obvious that even where the Advisory Board reports that there is in its opinion sufficient cause for the detention of the

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detenu, the State Government is not bound to confirm the order of detention. The State Government has to apply its mind, keeping in view all the facts and circumstances relating to the case of the detenu including the opinion of the Advisory Board and come to its own decision whether or not to confirm the order of detention. If, therefore, the State Government has before it at that time the representation of the detenu, the State Government must consider it and take it into account for the purpose of deciding whether to confirm and continue the detention. This view finds support from the following observations of Palekar, J. speaking on behalf of the Court in B. Sunder Rao and Ors. v. State of Orissa(1) :

"Secondly having regard to the second principle referred to above' the Government cannot absolve itself from considering the representation even at a later stage. We have seen that after the Advisory Board's opinion is received the State Government is bound under section 11 to consider whether it should confirm the detention order and continue the detention of the person concerned. Since the Government had not considered the representation as soon as it was received nor even at the time of the confirmation and continuation of the detention, the Government had failed in one of its obligatory duties With regard to the detention of the prisoners and, therefore, for that reason also the detention becomes illegal."

Here in the present case the representation of the Petitioner was received by the State Government before it confirmed the order of detention, but it did not consider the representation and thus "failed in one of its obligatory duties with regard to the detention" of the petitioner. The subsequent consideration and rejection of the representation of the petitioner could not cure the invalidity of the order of confirmation. The detention of the petitioner must, therefore, be held to be illegal and void."

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20. Again in the case of Ankit Ashok Jalan's (supra), the

Supreme Court noted the principles relating to the matter of

consideration of representation in the following manner:

"17. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in following four categories:-

17.1) If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition.

Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board.

17.2) If the representation is received just before the reference is made to the Advisory Board and there is no sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul15 and Haradhan Saha the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation. 17.3) If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha, the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board.

17.4) If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition."

21. From the foregoing analysis of legal position, it is clear

that if a representation is received before reference is made to

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the Advisory Board, the same has to be considered by the

Government whereafter representation along with decision

taken on representation has to be forwarded to the Advisory

Board. In the present case, admittedly the representation of

the petitioner was received by the Government before the case

was referred to the Advisory Board but instead of considering

the said representation, the Government referred the matter to

Advisory Board and forwarded the copy of the representation

to the Board. The course adopted by the Government in the