IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 28.07.2025 Pronounced on: 14.08.2025 HCP No.37/2024 AKASH AHMAD WAR ...Petitioner(s) Through: - Mr. S. T. Hussain, Sr. Advocate, with Ms. Nida Nazir, Advocate. Vs. UT OF J&K &ORS. …Respondent(s) Through: - Mr. Faheem Nisar Shah, GA, vice Mr. Ilyas Nazir Laway, GA. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) By the medium of instant petition, the petitioner has challenged the legality and veracity of the order No.01/DMA/PSA/DET/2024 dated 11.01.2024, issued by District Magistrate, Anantnag - respondent No.2 herein, in terms whereof, Akash Ahmad War (hereinafter referred to as the detenue), has been placed under preventive detention so as to prevent him from acting in any manner prejudicial to security of the State/UT of J&K. 2) The petitioner has contended that the detaining authority has passed the impugned detention order mechanically without application of mind as 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 its illegal action of detaining the detenue. It has been contended that the grounds of detention are vague on the basis of which no prudent man can 2HCP No.37/2024 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 which formed basis of the impugned detention order has not been supplied to the petitioner. That the grounds of detention are non-existent and stale and that the representation filed by him has not been considered by the respondents. 3) Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have contended that the activities of detenue are highly prejudicial to 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 is contended that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. 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 further claimed 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 placed reliance on various judgments of the Supreme Court. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 3HCP No.37/2024 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 ground that the representation submitted by the detenue against his detention through his father has not been considered as result of consideration, if any, has been conveyed to him, thereby rendering the detention order unsustainable in law. 5) The record produced by the respondents reveals that the representation dated 21.01.2024 of the petitioner was forwarded by the Home Department to the Special Director General, CID, J&K, on 29.01.2024 for his comments. It is also revealed that upon receipt of report dated 11.04.2024 from the CID, the representation of the petitioner has been rejected by the Government and the same has been conveyed by the Government to the District Magistrate vide communication dated 16.05.2024. However, the respondents have not placed on record anything to show that the order of rejection of representation was conveyed to the petitioner. It is not forth coming 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 vs. District Magistrate, Jabalpur and others,(2021) 20 SCC 98, 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 4HCP No.37/2024 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. 6) Apart from the above, the aforesaid representation has been received by the respondents probably in the fourth week of January, 2024, which is clear from communication dated 29.01.2024, addressed by the Home Department to the Special D.G. of Police, CID, J&K, that forms part of the detention record. However, the same has been decided on 16.05.2024, after a period of about more than four months. The question that arises for determination is, as to whether consideration of representation after a period of more than three four from the date of receipt of the same satisfies the requirement of law. 7) The aforesaid question has been answered by the Supreme Court in Sarabjeet Singh Mokha’s case (supra). 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 5HCP No.37/2024 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.” 8) 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.In the present case, the respondents have decided the representation after a period of more than four months. This slackness on the part of respondents to take a 6HCP No.37/2024 decision on the representation of the petitioner renders the impugned order of detention illegal. 9) 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, unless, of course, he is required in connection with any other case. 10) The record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 14.08.2025 “Bhat Altaf-Secretary” Whether the JUDGMENT is reportable: Yes Naresh Kumar 2025.08.14 18:04 I attest to the accuracy and integrity of this document