HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No. 30/2025 Reserved on: 22.05.2025 Pronounced on: 27.05.2025 Maskeen Ali @Bantu, Age 30 years S/O Lal Hussain, R/O Ward No. 13, Tehsil Hiranagar, District Kathua Presently lodged at Central Jail, Kot-Bhalwal Jammu .....Appellant/Petitioner(s) Through :- Mr. A.P. Singh, Advocate. v/s 1. UT of J&K through Commissioner-cum-Secretary to the Government, Home Department Civil Secretariat, Jammu 2. District Magistrate, Kathua 3. Senior Superintendent of Police, Kathua 4. Superintendent, Central Jail, Kot-Bhalwal, Jammu .....Respondent(s) Through :- Mr. Suneel Malhotra, GA. CORAM: HON’BLE MR. JUSTICE MA CHOWDHARY, JUDGE JUDGMENT 01. District Magistrate, Kathua (hereinafter called “Detaining Authority”) in exercise of powers under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 (for short, Act of 1978”) passed the detention order No. PSA/136 dated 09.01.2025 (for short „impugned order‟), in terms whereof the peittioner Maskeen Ali @ Bantu, S/O Lal Hussain, R/O Ward No. 13 Tehsil Hiranagar District Kathua (for short „detenue‟) has been detained. 02. The impugned detention order has been challenged through the medium of the instant petition, allegedly having been passed in breach of the provisions Sr. No. . 2 HCP 30/2025 of Article 22(5) of the Constitution of India read with Section 13 of the J&K Public Safety Act, 1978. 03. It is pleaded in the petition that the detaining authority-respondent no. 2 has not attributed any specific allegation against the detenue; that the detenue was incapacitated from filing a representation, as the grounds of detention were not provided in a language he could understand; that the petitioner is neither a threat to the maintenance of public order and harmony nor has he committed any offence that could be said to have disturbed society at large; that the detenue is not literate in English, and most of the documents attached with the dossier are either blurred or illegible, and were not accompanied by any translated version in a language understandable to him; that he petitioner is only conversant with the Gojri language and is unable to read or understand Urdu or English; that the detention order and the connected documents annexed to the petition clearly reflect a violation of the detenue‟s rights as guaranteed under Article 22(5) of the Constitution of India. 04. In their counter-affidavit, the respondents assert that the detenue was ordered to be detained under the provisions of the Jammu & Kashmir Public Safety Act, 1978, with due application of mind. They contend that none of the statutory, legal, or fundamental rights of the petitioner has been violated. The detention warrant, grounds of detention, and other documents (totaling 100 pages) were read over to the detenue in English and explained to him in Hindi, Dogri, and Gojri languages, which he fully understood. Subsequently, the said copies were provided to him. The respondents further maintain that the petitioner was detained under the Jammu & Kashmir Public Safety Act, due to his repeated and continuous involvement in illegal and criminal activities, 3 HCP 30/2025 including bovine smuggling, which were prejudicial to the maintenance of peace and public order in District Kathua 05. Mr. A.P Singh, learned counsel for the petitioner, referring to the factual background under which the impugned detention order was passed, submits that five cases registered vide various FIRs from the year 2019 to 2022, have been made the basis, in addition to some DDRs, to detain the petitioner. He has argued that one of the FIRs relates to the commission of an offence under the NDPS Act, another pertains to a personal dispute among private individuals, and the remaining three FIRs are related to non-compliance with the orders issued by a public authority. Furthermore, he contends that the DDRs recorded thereafter have been made in a proforma style without attributing any specific activity to the petitioner. 06. He has further argued that all the cases referenced in the impugned detention order were registered up to the year 2022 and cannot be stated by any stretch of imagination to be a live link between the impugned order passed in January 2025 and those activities. Therefore, these grounds can be described as stale in nature and it was not permissible to the detaining authority to rely upon stale cases or vague DDRs to justify the passing of the impugned detention order, which was passed by the detention authority without any application of mind. Another ground raised by the petitioner, and argued by learned counsel, is that the petitioner was not provided with the complete material, as illegible copies of the material had been supplied to him, as not denied by the respondents in their counter affidavit to the assertions of the petitioner. He has further argued that this material was stated to have been explained by the executing officer to the detaining authority in English, Urdu and Gojri languages. However, as a matter of fact, the petitioner, being an illiterate person, 4 HCP 30/2025 was not well-versed with the English language in which the other material was provided to him. He has further argued that the detaining authority did not inform the detenue that he had the right to file a representation against his detention to the detaining authority, as the communication made to him states that he can file a representation to the Government or to the Advisory Board, as such, the petitioner was not provided an opportunity to make an effective and meaningful representation against his detention. Learned counsel for the petitioner finally argued that the detaining authority passed the impugned detention order after more than two and a half months, after the Senior Superintendent of Police, Kathua, had filed a dossier in this behalf. Therefore, the unexplained delay in passing the order by the Magistrate is itself sufficient to vitiate the passing of the order. He has finally prayed that the detention order, being unsustainable in law, be quashed and the petitioner be directed to be released forthwith from custody. 07. Mr. Suneel Malhotra, learned GA, ex-adverso, argued that petitioner had been made aware of his right to file a representation to the government or the Advisory Board against his detention, and the petitioner chose not to file the representation. Therefore, it is not open to the petitioner to say that his representation was not considered by the detaining authority. Had the petitioner filed the representation, the detaining authority was under obligation to decide the same. As such, this is no ground to vitiate the detention order. The contention of the learned counsel for the petitioner that the petitioner was not made available in his own language is also not tenable in view of the affidavit filed by the respondents, wherein the executing officer‟s report states that he had explained the detention order and other records to the detenue at the time of his 5 HCP 30/2025 detention in the language understandable to him. Therefore, this is also not a ground to entitle the petitioner to be released. 08. Mr. Malhotra, has further argued that all the activities attributed to the petitioner are detrimental to the maintenance of public order, as he was not only found involved in the commission of an offence punishable under the NDPS Act but was also found involved in cases of Bovine smuggling and as per the DDRs recorded before passing the impugned detention order, it is clearly indicated that the activities of the petitioner who are detrimental to public order. Learned counsel for the respondents finally prayed that the impugned order be upheld and the petition on hand be rejected. 09. Heard learned counsel for the parties at length, perused the record, and considered the matter. 10. The petitioner was detained vide the impugned detention order by the detaining authority to prevent him from activities prejudicial to the maintenance of public order and tranquility on the basis of a dossier prepared by SSP Kathua. The detaining authority, while formulating grounds of detention, referred to cases registered against the petitioner vide FIR No. 34/2019 registered at Police Station Hiranagar for the commission of offences punishable under Sections 8/21/22 NDPS Act, FIR no. 158/2019, registered at Police Station, Rajbagh for the commission of offences punishable under Sections 341/323/34/382 on a complaint filed by one Ashiq Ali S/O Raju Din R/O Ladwal Tehsil Marheen, and that both the cases are sub judice before the Courts. The cases vide FIR No. 23/2021 at Police Station Ghagwal, FIR No. 398/2021 registered at Police Station Nagrota, FIR No. 118/2021 registered at Police Station Hiranagar for the commission of offences punishable under Sections 188/IPC and 11 PCA Act and in the aforesaid cases, the accused was convicted and sentenced to a fine. 6 HCP 30/2025 11. Besides the cases registered vide aforesaid FIRs, the police also recorded daily dairy reports at Police Station Hiranagar on 17.12.2023, 17.01.2024, 23.01.2024, 14.02.2024, 15.02.2024, 27.03.2024 and 19.11.2024. In almost all these DDRs, it was recorded that the petitioner was a very clever and notorious criminal involved in the aforesaid cases, and his surveillance was required as there was apprehension that in the Lok Sabha elections of 2024, he might disturb public peace and tranquility and communal harmony amongst society. No specific activity has been recorded in any of the DDRs except making identical observations in almost all the DDRs. Besides, the aforesaid FIRs and DDRs, in the grounds of detention, a complaint under Section 107/117 CrPC has also been referred to wherein the petitioner was called to the Police Station to verify the matter relating to drugs and in view of the afore-stated reasons public tranquility/peace could be disturbed in the area, by the petitioner. 12. The first argument of the learned counsel for the petitioner regarding the stale grounds, particularly in the face of all the cases registered vide various FIRs up to the year 2022, and the same could not have been made basis for detention of the petitioner in the year 2025 after the gap of three years merits consideration. The DDRs which have been recorded apparently to wriggle out of this staleness of the grounds also seem to be an unsuccessful attempt in view of the fact that no specific activity has been alleged against the petitioner. The live and proximate link between the past conduct of the detenue and the imperative need to detain must be harmonized to rely upon the alleged illegal activities of the detenue. Old and stale incidents shall be of no use to base a preventive detention order, as has been held by the Apex Court in the case titled “Sama Aruna v. State of Telangana”, reported as (2018)12 SC 150. 7 HCP 30/2025 13. All the DDRs referred to by the detaining authority in the grounds of detention do not disclose any activity detrimental to the public order, and merely recording that the detenue is a “clever man” shall not be a valid ground to justify detention under preventive laws. 14. As regards the other ground taken by learned counsel for the petitioner that the petitioner was not provided with complete material relied upon to pass the detention order, and the copies furnished to him were not legible (a fact not denied by the respondents), it is held that a detenue is always entitled to be supplied with legible copies of documents relied upon by the detaining authority. Such documents and information forming the grounds of detention are essential to enable the detenue to make an effective representation, therby safeguarding the fundamental right available to him under Article 22 (5) of the Constitution of India. The petitioner was also not informed in the communication by the detaining authority that he could make a representation to the detaining authority against the impugned detention order. This omission is a serious lapse on the part of the detaining authority, as it deprives the detenue of a valuable constitutional right to file a representation against his detention. 15. The assertion of the learned counsel for the respondents that the petitioner could have filed a representation and failure to do so does not satisfy the constitutional safeguard, provided under Article 22 (5) of the Constitution of India. Both the aforesaid grounds, non- supply of complete and legible material, and failure to inform the detenue of his right to file a representation before the detaining authority, thus, in the considered opinion of this Court, vitiate the impugned detention order. Another ground raised on behalf of the petitioner is that the detaining authority passed the impugned detention order after a delay of two and a half months from the date the dossier was submitted by the Sr. 8 HCP 30/2025 Superindentent of Police. The Apex Court, in its judgment in a cases titled “Rabinder Kumar Ghosel vs. State of WB” dated 17.03.1975, reported as 1975 AIR (SC) 1408 and in case title “Jagan Nath Biswas Vs State of WB” reported as 1975 AIR (SC) 1516 has held that unexplained delay in passing a detention order renders the same unsustainable. 16. Upon a close scrutiny of the detention record and the background under which the impugned detention order came to be passed, this Court is of the considered opinion that the impugned detention order is vitiated on the aforestated grounds. 17. Having regard to the afore-stated reasons and discussion in made hereinabove, in view of the factual background of the case and the law under subject, the petition is allowed. As a result, impugned detention order is quashed and the detenue is ordered to be released forthwith from custody provided he is not required in any case(s). 18. The petition is thus disposed of. (MA Chowdhary) Judge JAMMU 27.05.2025 Abinash Whether the judgment is speaking? Yes Whether the judgment is reportable? Yes