IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 21.07.2025 Pronounced on: 01.08.2025 HCP No.99/2024 BILAL AHMAD DAR ...Petitioner(s) Through: - Mr. Wajid Haseeb, Advocate. Vs. UT OF J&K & Ors. …Respondent(s) Through: - Mr. Hakeem Aman Ali, Dy. AG. 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.10/DMB/PSA/2024 dated 29.03.2024, issued by District Magistrate, Baramulla - respondent No.2 herein, in terms whereof, Bilal Ahmad Dar (hereinafter referred to as the detenue), has been ordered to be taken into preventive so as to prevent him from acting in any manner prejudicial to security of the 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 make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied 2 HCP No.99/2024 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. 4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main, 3 HCP No.99/2024 thrust during the course of arguments, was on the following grounds: (I) That the detenue was not furnished the whole of the material to enable him to make an effective representation against his detention. (II) That although a representation was submitted against the detention by the detenue through his brother before the respondents yet the same has not been considered thereby rendering the detention order unsustainable in law. 5) So far as the first ground of challenge is concerned, a perusal of the material on record reveals that the petitioner has received detention order (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (05 leaves), copies of FIR, statements of witnesses and other relevant documents (02 leaves) (total 12 leaves), and in token whereof, his signatures have been obtained on the document under the style ‘Execution Report’, which forms part of detention record. If we have a look at the grounds of detention, it bears reference to FIR No.100/216 of P/S Safakadal Srinagar. It was incumbent upon respondents to furnish not only the copy of the FIR but also the statements of witnesses recorded during investigation of the said FIR and other material on the basis of which petitioner’s involvement in the said FIR is shown. All this material would run in dozens of pages and it is impossible that all this material would be covered in only two leaves. Even the copy of the PSA warrant has not been furnished to the petitioner. Besides this, it seems that the documents relating to proceedings under Section 107/151 of Cr. P. C, reference whereof is 4 HCP No.99/2024 made in the grounds of detention, have not been furnished to the petitioner. 6) Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well- founded. Obviously, the petitioner has been hampered by non- supply of these vital documents in making an effective representation before the Advisory Board. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 7) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. 5 HCP No.99/2024 Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184). 8) 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. 9) The record produced by the respondents reveals that the representation dated 04.04.2024 of the petitioner was forwarded by the Home Department to the Special Director General, CID, J&K, on 10.05.2024 for his comments. It is also revealed that upon receipt of report dated 26.07.2024 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 31.07.2024. 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 coming forth 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 held that failure 6 HCP No.99/2024 of the government to communicate rejection of detenue’s representation in a time bound manner is sufficient to vitiate the detention order. 10) 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. 11) The record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 01.08.2025 “Bhat Altaf-Secretary” Whether the JUDGMENT is speaking: Yes/No Whether the JUDGMENT is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 01.08.2025 02:31