HCP No.304/2024 p. 1 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 13.11.2025 Pronounced on:21.11.2025 Uploaded on: 21.11.2025 Whether the operative part or full judgment is pronounced: Full HCP No.304/2024 ASIF ALI BHAT ...PETITIONER(S)/APPELLANT(S) Through: - Mr. Wajid Haseeb, Advocate. Vs. UT OF J&K & OTHERS ...RESPONDENT(S) Through: - Mr. Hakim Aman Ali, Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) Through the medium of present petition, the petitioner has challenged detention order bearing No.08/DMB/PSA/2024 dated 29.03.2024, issued by District Magistrate, Baramulla, in exercise of powers conferred by Section 8 of the J&K Public Safety Act, 1978, whereby the detenue, namely, Asif Ali Bhat, has been placed under preventive detention so as to prevent him from indulging in the activities which are prejudicial to the security of the UT of J&K. 2) It has been contended by the petitioner that the allegations mentioned in the grounds of detention have no nexus with the detenue and that the same have been fabricated by the police in order to justify their illegal action of detaining the detenue. It has been submitted that impugned detention order has been passed without application of mind as the grounds of detention are vague, non-existent and stale, on HCP No.304/2024 p. 2 which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material has not been provided to the petitioner. It has been further urged that there has been non-application of mind on the part of detaining authority while passing the impugned detention order as the detenue was already admitted to bail in one of the FIRs mentioned in the grounds of detention but the said fact is not mentioned in the grounds of detention and that the representation submitted by the petitioner against the impugned detention order has not been considered as no result of consideration has been conveyed to him. 3) The respondents, in their counter affidavit, have contended that none of the legal rights of the petitioner have been infringed or violated. It has been further contended that the activities of the detenue are highly prejudicial to the security of the State. 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 HCP No.304/2024 p. 3 produced the detention record to lend support to the stand taken in the counter affidavit. 4) 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 following grounds: (i) That there has been non-application of mind on the part of the detaining authority as the detenue has already been admitted to bail in FIR No.29/2018 registered with P/S Tangmarg, but this fact has not been mentioned in the grounds of detention. (ii) That the representation filed by the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights. 5) So far as the first ground of challenge is concerned, from a perusal of the material available on file, the ground regarding non- application of mind on the part of the detaining authority appears to be forceful, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had already been admitted to bail in FIR No.29/2018 registered with P/S Tangmarg in terms of the order passed by the court of competent jurisdiction. The petitioner has placed on record a copy of order dated 13.08.2018 passed by the learned 1st Additional Sessions Judge Baramulla, whereby the interim bail granted in favour of the petitioner pursuant to order dated 13.06.2018 in a case arising out of FIR No.29/2018 has been made absolute. However, this fact does not find mention in the grounds of detention formulated by the detaining authority. The non-mentioning of this important fact in the grounds of detention exhibits non- HCP No.304/2024 p. 4 application of mind on the part of detaining authority. This shows that the detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law. I am supported in my aforesaid view by the judgments of the Supreme Court rendered in the cases of Anant Sakharam Raut v. State of Maharashtra & Ors. AIR 1987 SC 137, Rekha v. State of T.N. (2011) 5 SCC 244, and Rushikesh Tanaji Bhoite v. State of Maharashtra and others, (2012) 2 SCC 72. 6) Next it has been contended by learned counsel for the petitioner that the representation filed by the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights. 7) A perusal of the detention record reveals that the representation of the petitioner dated 16.07.2024 has been rejected by the Government and an intimation in this regard has been communicated by the Deputy Secretary to the Government, Home Department, to the District Magistrate, Baramulla, in terms of communication No.Home/PB-V/142/2024/7448731 dated 13.09.2024. In the said communication, the respondents have admitted receipt of representation of the petitioner. The representation has been received by the respondents probably in third week of July, 2024, which is clear from the communication dated 20.07.2024 addressed by the District Magistrate, Baramulla, HCP No.304/2024 p. 5 to the Financial Commissioner, Home Department, that forms part of the detention record. The question that arises for determination is as to whether consideration of representation after a period of about two months from the date of receipt of the same satisfies the requirement of law. 8) The aforesaid question has been answering by the Supreme Court in Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others, (2021) 20 SCC 98. It would be apt to refer to observations made by the Supreme Court in para 47 of the judgment, which are reproduced as under:- “47. By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu “as soon as may be” and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy. The State Government failed to do so. The making of a reference to the Advisory Board could not have furnished any justification for the State Government not to deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Governments in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA. The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.” HCP No.304/2024 p. 6 9) From the foregoing analysis of law on the subject, it is manifest that delaying of decision on the representation of the detenue amounts to an infringement of a valuable right which 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. 10) In the present case, the respondents have received the representation of the petitioner in the third week of July, 2024 but the same has been decided by them on 13.09.2024. This slackness on the part of respondents to take a decision on the representation of the petitioner renders the impugned order of detention illegal. 11) Apart from the above, in the present case, the respondents have not placed on record anything to show that the order of rejection of representation was conveyed to the petitioner. The communication HCP No.304/2024 p. 7 dated 13.09.2024 is an inter-departmental communication between Home Department and District Magistrate, Anantnag. It is not forthcoming from the record produced by the respondents as to whether the result of the representation has been conveyed to the petitioner. The Supreme Court in Sarabjeet Singh Mokha’s case (supra) 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. 12) For the afore-stated reasons, the petition is allowed and the impugned detention order is quashed. The respondents are directed to release the petitioner from the preventive custody forthwith, provided he is not required in connection with any other case. 13) The record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 21.11.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No