HCP 177/2024 Serial No. 10 Regular Cause list HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP 177/2024 CM(4191/2024) Irfan Farooq Zagar, Aged 31 Yrs S/O Farooq Ahmad Zargar R/O Soin Sadnar Rafiabad, Tehsil Dangiwacha District Baramulla. Through his Brother Basharat Farooq Zargar, Aged 35 Years …Appellant(s)/Petitioner(s) Through: Mr. Wajid Mohammad Haseeb, Advocate Vs. 1. UT of J&K Through Principal Secretary, Home Department, J&K Govt. Civil Sectt., Srinagar/Jammu 2. District Magistrate, Baramulla. 3. Sr. Superintendent of Police, Sopore ...Respondent(s) Through: Mr.Hakim Aman Ali, Dy.AG CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE. JUDGMENT 28.08.2025 Oral: 1. The instant petition has been preferred by the brother of the detenue, thereby challenging detention order No. 16/DMB/PSA/2024 dated 06.04.2024 (hereinafter referred to as the “impugned order”) passed by District Magistrate Baramulla, whereby Mr. Irfan Farooq Zargar (age 31 years) S/O Farooq Ahmad Zargar R/O Soin Sadnar Rafiabad, Tehsil Dangiwacha, District Baramulla has been taken into preventive custody and lodged in District jail under Section 8 of J&K Public Safety Act, 1978. 2. It is stated that the detenue was arrested in the month of June 2024 and was implicated in case FIR 44/2023 at P/S Dangiwacha, in which the detenue was admitted to bail on 05.08.2023, and was released from custody. In first week of April 2024, the detenue was called to P/S Dangiwacha, where he was detained and later shifted to District Jail Anantnag. HCP 177/2024 3. Petitioner has challenged the detention order on the ground that the allegations mentioned in the grounds of detention has no nexus with the detenue and have been fabricated to justify the illegal action of detaining the detenue; there is no de-jure justification mentioned in the grounds of detention to pass the order of preventive detention against the detenue; the detention order has been passed on mistaken identity, as the detenue has never established any contact, physically or virtually as alleged in the grounds of detention; the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegation; no specific allegation has been made regarding the detenue in the case mentioned in grounds of detention; not even an iota of connection is referred in the grounds of detention connecting the detenue with the allegations; the impugned order of detention suffers from complete non-application of mind on part of the detaining authority; the last alleged activity attributed to the detenue has taken place in the year 2023 and thereafter no fresh activity has been attributed to the detenue, as such, the detention order lacks proximity and any live link. The delay of more than nine months between the last alleged activity and the order of detention has snapped the proximity of the requirement of passing of detention order. The detention order has been passed primarily in view of the ensuing parliamentary elections. 4. The dossier submitted by respondent No. 3, is unjustified and has no material basis, so as to recommend the detention of the detenue at this stage; the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite for it before passing any detention order. There is no supporting material, except the police dossier. The representation of the detenue has neither been considered in due course of law nor the material as requested has been furnished to the detenue. HCP 177/2024 5. Per contra, in the reply affidavit filed by the respondents, it is stated that the activities of the detenue have been found prejudicial to the maintenance of security of the UT, police recommended his preventive detention and in this behalf submitted dossier supported by relevant material to the District Magistrate, where the material/record was examined and after finding the preventive detention of the detenue necessary, the impugned order was passed with the sole aim and object to deter the detenue from acting in any manner prejudicial to the maintenance of security; the grounds of detention are precise, proximate, pertinent and relevant. There is no vagueness or staleness in the grounds of detention coupled with definite indications, as to the impact thereof which has been precisely stated in the grounds of detention. The incidents clearly substantiate the subjective satisfaction arrived at by the respondents. The grounds of detention reflects a complete picture of the activities of the detenue, which on the face of it were highly prejudicial to the Security of UT, which had compelled the detaining authority to pass detention order against the detenue. Even grant of bail in the criminal offence, cannot debar the detaining authority to order preventive detention of the detenue, when the preventive detention of such an individual is found necessitated. It is stated that all the material on which the dossier was prepared, was received and on the basis of such entire material, detention order has been issued. The detenue was also provided with all material including copies of the detention order, and grounds of detention, and was informed of his rights to make representation against the detention order, if he chooses so, for which proper receipt was received from the detenue. The detaining authority has passed detention order after deriving subjective satisfaction in the matter. Grounds of detention, order of detention as well as entire material relied upon by the detaining authority came to be furnished to the detenue well within statutory period provided under Section 13 of the Act. HCP 177/2024 The warrant was accordingly executed by the Executing officer and detenue was handed over to Superintendent District Jail Anantnag. The contents of the detention order/Warrant and the grounds of detention were read over and explained to the detenue in the language which he could understand and in lieu thereof, the detenue subscribed his signatures on the execution report/order. 6. Heard learned counsel for the parties and perused the material on record. 7. Learned counsel for the petitioner has vehemently argued that there is no proximity or live link of the detenue, after he was bailed in FIR 44/2023 on 05.08.2023, till passing of the impugned detention order on 06.04.2024. It is further stated that though he had made a representation before District Magistrate on 10.05.2024, thereby stating that he failed to make an effective representation on the ground that he was not provided the entire material relied upon and reference whereof is given in the detention order. He had also requested the detaining authority to provide him the relevant material so that he could file an effective representation. 8. Mr. Hakim Aman Ali, learned Dy.AG states that the impugned detention order dated 06.04.2024 was executed on 09.04.2024, the same was approved by the competent authority on 15.04.2024 and by the Advisory Board on 24.04.2024, till then the detenue had not made any representation before the competent authority. On 06.08.2024, the representation of the detenue was considered and rejected by Home Department with the information to District Magistrate, so that same could be conveyed to the detenue. On 03.05.2024, the same was confirmed by the Home Department. 9. Perusal of the record reveals that in terms of the execution report dated 09.04.2025, it is only mentioned that the detention papers in total 19 leaves have been handed over to the detenue in token of receipt. A very strange practice has HCP 177/2024 been adopted by the detaining authority, wherein it is not even mentioned that which material has been furnished to the detenue in these 19 leaves. 10. Learned counsel for the petitioner states that the detenue was not provided with the relevant material. The documents, which have been received by him are order of detention, execution report, communication of the detention order and the grounds of detention. Rest what has been referred in grounds of detention vis-a-vis the copy of FIR, Seizure memo, Arrest memo and Statement of 161 CrPC have not been furnished to the detenue, as a result of which he could not make an effective representation. 11. The Supreme Court in case titled “Lakshman Khatik vs. State of West Bengal”reported as (2024) 9 SCC 53 has held as under: “All the three grounds on which the District Magistrate purports to have reached the required satisfaction are based on incidents which took place in rapid succession in the month of August, 1971. The first incident of unloading 5 bags of rice took place in the afternoon of 3-8-1971. The second incident took place on 5- 8-1971 also in the afternoon practically at the same place as the first incident. This time also some rice was removed from the trucks carrying rice. The third incident took place in the afternoon of 20-8-1971 also at the same place. That also related to the removal of some rice from loaded trucks It is not clear from the record whether the petitioner was prosecuted for the theft, especially, when it is seen that the first incident of removal of rice was witnessed by two constables. However that might be, it appears to us that the District Magistrate could not have been possibly satisfied about the need for detention on 22-3-1972 having regard to the detenu's conduct some 7 months earlier. Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of HCP 177/2024 foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion the order of detention is invalid. 12. In case titled “Sarabjeet Singh Mokha vs. District Magistrate Jabalpur and Others” reported as 2021 (20) SCC 98, it has been held: “The requirement under Section 8 of the disclosure and communication of the grounds of detention and the affording of an opportunity to the detenu of making a representation against such an order to the appropriate government, is distinct from the reference to the Advisory Board. In Jayanarayan Sukul v. State of West Bengal 45, a Constitution Bench of this Court laid emphasis on the expeditious consideration of the representation by the appropriate government. In that case, a representation was made by the petitioner against an order of detention passed under Section 3(2) of the Preventive Detention Act 1950. The petitioner made a representation to the State Government on 23 June 1969, which was rejected on 19 August 1969, as a reference regarding the detention order was pending before the Advisory Board. The Court held that there was an inordinate delay in considering the representation of the petitioner. Justice AN Ray (as the learned Chief Justice then was), speaking for the Bench, observed: 45 (1970) 1 SCC 219 26 PART D “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. […] Broadly stated, four principles are to be followed in regard to representation of detenus. 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 HCP 177/2024 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. 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.” 13. This Court is in consonance with the judgment in case titled “Jaseela Shaji vs. The Union of India” reported as (2024) 9 SC 53. While refering to certain decisions of the court, has held that the failure of the respondents to supply the relevant material to the detenue has been held to be fatal for the detention order. It would be profitable to reproduce paragraphs 29, 35, 36 and 37 of the judgment. “29. There can be no doubt that it is not necessary to furnish copies of each and every document to which a casual or passing reference may be made in the narration of facts and which are not relied upon by the Detaining Authority in making the order of detention. However, failure to furnish copies of such document/documents as is/are relied on by the Detaining Authority which would deprive the detenu to make an effective representation would certainly amount to violation of the fundamental right guaranteed under Article 22(5) of the 18 Constitution of India. 35. In the case of Ranu Bhandari (supra), this Court observed thus: “25. Keeping in mind the fact that of all human rights the right to personal liberty and individual freedom is probably the most cherished, we can now proceed to examine the contention advanced on behalf of the parties in the facts and circumstances of this case. But before we proceed to do so, HCP 177/2024 it would be apposite to reproduce hereinbelow a verse from a song which was introduced in the cinematographic version of Joy Adamson's memorable classic Born Free which in a few simple words encapsulates the essence of personal liberty and individual freedom and runs as follows: “Born free, as free as the wind blows, As free as the grass grows, Born free to follow your heart. Born free and beauty surrounds you, The world still astounds you, Each time you look at a star. Stay free, with no walls to hide you, You're as free as the roving tide, So there's no need to hide. Born free and life is worth living, It's only worth living, if you're born free.” The aforesaid words aptly describe the 21 concept of personal liberty and individual freedom which may, however, be curtailed by preventive detention laws, which could be used to consign an individual to the confines of jail without any trial, on the basis of the satisfaction arrived at by the detaining authority on the basis of material placed before him. The courts which are empowered to issue prerogative writs have, therefore, to be extremely cautious in examining the manner in which a detention order is passed in respect of an individual so that his right to personal liberty and individual freedom is not arbitrarily taken away from him even temporarily without following the procedure prescribed by law. 36. A perusal of the aforesaid judgment would reveal that for emphasizing the importance of personal liberty and individual freedom, this Court has reproduced Joy Adamson’s memorable classic Born Free. This Court observed that though the concept of personal liberty and individual freedom can be curtailed by preventive detention laws, the Courts have to ensure that the right to personal liberty and individual freedom is not arbitrarily taken away even temporarily without following the procedure prescribed by law. It has been held that when a detention order is passed all the material relied upon by the detaining authority in making such an order must be supplied to the detenu to enable him to make an effective representation. This Court held that this is required in order to comply with the mandate of Article 22 (5) of the Constitution, irrespective of whether the detenu had knowledge of such material or not. 37. It is thus a settled position that though it may not be 23 necessary to furnish copies of each and every document to which a casual or passing reference has been made, it is imperative that every such document which has been relied on by the Detaining Authority and which affects the right of the detenu to HCP 177/2024 make an effective representation under Article 22(5) of the Constitution has to be supplied to the detenu. 14. In light of the above, it is substantiated from the judgment supra, that it was obligatory on the part of the detaining authority to furnish relevant material to the detenue and to specify in the execution report, as to which documents were furnished to the detenue. Moreover, there is no subjective satisfaction arrived at by the respondents, while passing the impugned detention order. The detaining authority has failed to apply its mind properly, as a result of which, the detenue could not make an effective representation. 15. In view of the above and having regard to what has been discussed, the impugned detention order does not sustain in the eyes of law. Hence, the instant petition is allowed and the impugned detention order No. 16/DMB/PSA/2024 dated 06.04.2024 is set aside. Respondents are directed to release the detenue forthwith, if not required in any other case. 16. Detention record be returned to the learned counsel for respondents against proper receipt. (MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR: 28.08.2025 “Adil Ismail”  Whether the Judgment is Reportable? Yes/No.  Whether the Judgment is Speaking? Yes/No