HCP/151/2025 of JAFFER AHMAD AHANGAR ALIAS JAFFAR Vs UNION TERRITORY OF J AND K AND ANR. (HOME) on 24 December 2025

JUDGEMENT

1. Through the medium of this petition, Order no.02/DMK/PSA of 2025 dated 29.04.2025, (impugned detention order) passed by District Magistrate, Kupwara – respondent no.2, (for short „detailing authority‟) whereby detenu, namely, Jaffer Ahmad Ahanger S/o Ab Rahim Ahanger R/o Magam, Tehsil Handwara, District Kupwara, has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the UT of Jammu and Kashmir, is sought to be quashed and the detenu set at liberty on the grounds made mention of therein.

2. Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State and, therefore, his remaining at large is a threat to the security of State. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant.

3. I have heard learned counsel for parties and considered the matter. I have gone through the detention record produced by the counsel appearing for respondents.

4. Learned counsel for the petitioner states that the detenu was arrested on 28.04.2025 by the police personal of Police Chowki, Magam, thereafter he was shifted to Police Station Handwara wherefrom he was shifted to District Jail Udhampur, to be detained under preventive detention in terms of impugned order of detention. It is stated that the detaining authority has passed the impugned detention order mechanically and without application of mind, inasmuch as the Police while recommending the detention of the detenu has made FIR Nos.282/2016 & FIR No. 275/2017 as basis for his detention. The police after investigation, filed Challan in the Court of law, in FIR No. 375/2017 the detenu has been long back discharged while as Challan in FIR No. 282/2017 is sub-judice and till date police has not been able to prove said case against the detenu, therefore, mere registration of FIR and mere production of Challan in the FIR does not establish that the detenu has committed the said offences as alleged in the ground of detention, inasmuch as the grounds of detention are vague, indefinite, non-existent on which no prudent man can make an effective representation against such allegations. It is also stated that the detenu has never been associated with any organisation and grounds of detention are replica of dossier inasmuch as the detenu on post detention has filed a representation before the respondent no. 2, however, the same was not considered in due course of law nor the material as requested was furnished to the detenu.

5. The contention of the learned counsel for the petitioner is that the detaining authority in the grounds of detention have stated that the detenu was taken into preventive custody under the provisions of BNSS from time to time and found intending to commit crime and accordingly was bound down before the Executive Magistrate and despite that the detenu indulged in the subversive activities, therefore, preventive detention under PSA has become imperative, while as, the detenu has not violated any of the conditions of the surety bond. The allegation levelled against the detenu are false and baseless as the allegations are based on mere whims, caprices and surmises of the detaining authority and are ipso facto insufficient and inconsistent to the provisions of Public Safety Act. The grounds are bereft of specific details which renders the order of detention vague and non-existent in the eyes of law. Since the detenu is an innocent, a law abiding citizen with no past criminal background, thereof, the order of detention is unwarranted. Learned counsel for petitioner has made reference to Dr. Ram Krishan Bhardwaj v. The State of Delhi and others , 1953 SCR 708; Shalini Soni (Smt.) and others v. Union of India and others 9180) 4 SCC 544; Icchu Devi Choraria (Smt.) v. Union of India and others (1980) 4 SCC 531; and Jai Singh and ors v State of Jammu and Kashmir (AIR 1985 SC 764). It is being also stated that in the grounds of detention it is mentioned that detenu was bound down and released on surety bond. He also avers that although the respondents in their counter/reply affidavit state that representation of detenu was rejected, but detenu/petitioner was never informed about rejection of representation, as such, the guaranteed rights of detenu have been violated.

6. It is well settled that detaining authority must provide detenu a very early opportunity to make a representation. The detaining authority is also required to consider the representation as soon as possible and this preferably must be before the representation is forwarded to Advisory Board. The representation must be forwarded to Advisory Board before the Board makes its report. The consideration by detaining authority of representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. The appropriate Government/detaining authority is to exercise its opinion and decision on the representation of detenu before sending the case along with detenu‟s representation to Advisory Board. Reference in this regard is made to Jayanarayan Sukul v. State of W.B. (1970) 1 SCC 219; Pankaj Kumar Chakraborty v. State of W.B. (1969) 3 SCC; FrancesCorallie Mullin v. W.C. Khambra (1980) 2 SCC 275; and Ankit Ashok Jalan v. Union of India and others, (2020) 16 SCC 127.

7. Right to make a representation is an enshrined right guaranteed under Article 22(5) of the Constitution of India. It incorporates a dual requirement: first, it requires detaining authority to communicate grounds of detention as soon as may be; and second, it requires to afford detenu an earliest opportunity to make a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression “as soon as may be” imports a requirement of immediacy. The communication of grounds is in aid of facilitating right of detenu to submit a representation against order of detention. In absence of grounds being communicated, detenu would be left in the dark about the reasons which have led to issuance of order of detention. The importance which the constitutional provision ascribes to communication of grounds as well as affording of an opportunity to make a representation is evident from the use of the expression “as soon as may be” in the first part in relation to communicating the grounds and allowing the detenu “the earliest opportunity” of availing of the right to submit a representation. Thus, the significance of Article 22 of the Constitution is that representation submitted by detenu must be disposed of at an early date. The communication of grounds of detention, as soon as may be, and the affording of earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless detaining authority deals with representation and communicates its decision with expedition.

8. Section 13 J&K Public Safety Act contains a requirement that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention communicate to him, in the language which is understandable to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation, against the order to the Government.

9. Article 22(5) of the Constitution provides for communication of grounds on which order of detention is made by detaining authority “as soon as may be”. Section 13 (1) of the Act uses the expression “as soon as may be”, qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and, in exceptional

circumstances, for reasons to be recorded in writing not later than ten days from the date of detention. Section 8(1) of the Act, thus, also embodies the second requirement of Article 22(5) of affording to detenu the earliest opportunity of making a representation against the order to the appropriate government.

10. Article 22(5) of the Constitution reflects keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and, therefore, it incorporates procedural safeguards which mandate immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by detenu must be disposed of at an early date. The communication of grounds of detention, as soon as may be, and affording of earliest opportunity to submit a representation against order of detention will have no Constitutional significance unless detaining authority deals with representation and communicates its decision with expedition.

11. The Supreme Court in the case of Jayanarayan Sukul (supra) laid emphasis on the expeditious consideration of the representation by the appropriate government. The Supreme Court held that there was an inordinate delay in considering representation of petitioner. It was observed: “18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. …….

20. Broadly stated, four principles are to be followed in regard to representation of 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. 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.” (emphasis supplied)

12. As has been held by the Supreme Court in Jayanarayan Sukul (supra), four principles are required to be followed with respect to representation of a detenu. First, appropriate authority is bound to give an opportunity to detenu to make a representation and to consider it as early as possible. Secondly, consideration of detenu‟s representation by appropriate authority is entirely independent of any action by Advisory Board including consideration of representation of detenu by Advisory Board. Thirdly, there should not be any delay in the matter of consideration and it has to be remembered that Government has to be vigilant in governance of citizens. A citizen‟s right raises a correlative duty of the State.

13. In the case of Ankit Ashok Jalan (supra) it was observed by the Supreme Court that consideration of representation(s) by appropriate Government and by Advisory Board would always be qualitatively different and the power of consideration by appropriate Government must be completely independent of any action by Advisory Board. In the case of Pankaj Kumar Chakrabarty (supra) it was stated by the Supreme Court that the obligation on the part of the Government to consider representation would be irrespective of whether the representation was made before or after the case was referred to the Advisory Board. Any delay in consideration of representation would not only be an irresponsible act on the part of appropriate authority but also unconstitutional.

14. In Sarabjeet Singh Mokha v. District Magistrate Jabalpur and others reported in (2021) 20 SCC 98, the Supreme Court has reproduced certain observations made by the Supreme Court on the consideration of representation by appropriate government and by the Advisory Board in Ankit Ashok Jalan (supra), which are reproduced hereunder:

“39. In a recent decision of a three judge Bench of this Court in Ankit Ashok Jalan v. Union of India51, Justice UU Lalit revisited the body of precedent on the subject and noticed the qualitative difference between the consideration of a representation by the appropriate government on the one hand and by the Advisory Board on the other. Justice UU Lalit, speaking for himself and Justice Indu Malhotra (with Justice Hemant Gupta dissenting52) observed: “16. These decisions clearly laid down that the consideration of representations by the appropriate Government and by the Board would always be qualitatively different and the power of consideration by the appropriate Government must be completely independent of any action by the Advisory Board. In para 12 of the decision in Pankaj Kumar Chakrabarty [Pankaj Kumar Chakrabarty v. State of W.B., (1969) 3 SCC 400 : (1970) 1 SCR 543] it was stated that the obligation on the part of the Government to consider representation would be irrespective of whether the representation was made before or after the case was referred to the Advisory Board. As stated in para 18, this was stated so, as any delay in consideration of the representation would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional. The contingency whether the representations were received before or after was again considered in para 29 of the decision in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] .” Justice UU Lalit categorized the different stages for when a representation is received and disposed, with the underlying principle that the representation must be expeditiously disposed of, at every stage: “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 the 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 not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] and Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] 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 [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816], 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.

15. In the case in hand, it is an admitted position that representations had been made by detenu through his father to respondents which, according to respondents, were rejected. However, there is nothing on record to show that rejection of representations has been forthwith communicated to detenu/petitioner inasmuch as the rejection of representation, according to counsel for petitioner, has come to fore only when respondents filed their counter. It is pertinent to mention here that it is not only consideration and/or rejection of representation of detenu, but it is important to communicate such a rejection with reasons to detenu/petitioner. In the event there is any delay in supplying/ communicating the order of rejection of the representation to the detenu/petitioner, it would also cause prejudice to the detenu as he would be deprived of his right to seek remedy vis-à-vis the order of rejection, which may prove fatal to the order of preventive detention. Thus, it is fundamental to interfere with the order of detention in view of failure of respondents to communicate rejection of representation to detenu/petitioner inasmuch as non-communication and/or delay in communication of rejection of representation to detenu/petitioner forms a part of infraction on detenu‟s constitutional right under Article 22(4) of the Constitution of India. Reference is made to Biren Dutta v. Chief Commissioner of Tripura, AIR 1965 SC 596; State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35; and Khaja Bilal Ahmed v. State of Telangana, 2020 (13) SCC 596.

16. For the reasons discussed above, the detention Order no. 02/DMK/PSA of 2025 dated 29.04.2025, passed by District Magistrate, Kupwara, is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case.

17. Disposed of.

18. Registry to return the detention record to learned counsel for respondents.

(Vinod Chatterji Koul) Judge Srinagar 24 .12.2025 (Qazi Amjad, Secy)

QAZI AMJAD YOUSUF I attest to the accuracy and authenticity of this document 27.12.2025 15:37