HCP No. 148/2024. Serial No.05 Regular list IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP No. 148/2024 Mudasir Bashir Alliaie, Age (30) years. S/O Bashir Ahmad Alliaie, R/O Trichal , Tehsil Pulwama, District, Pulwama. Th. his mother, Saleema Bano. ….. Petitioner(s) Through: - Mr. Asif Maqbool, Advocate. V/s 1.Union Territory of J&K, th. Principal/Secretary, Home Department, J&K Govt. Civil Secretariat, Srinagar/Jammu. 2. District Magistrate, Pulwama. 3. Senior Superintendent of Police, Pulwama. ….. Respondent(s) Through: - Mr. Faizan Yaqoob, GA. CORAM: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE JUDGMENT 21.08.2025 1. The petitioner in the instant petition filed under Article 226 of the Constitution through his mother has challenged detention Order No. 23/DMP/PSA/2024 dated 08.04.2024 (for short “Impugned order”) passed by the District Magistrate, Pulwama-respondent 2 herein (for short “the Detaining Authority”) where-under the petitioner/detenue namely, Mudasir Bashir Alliaie S/O Bashir Ahmad Alliaie R/O Trichal Pulwama, District, Pulwama, has been detained by the Detaining Authority under the Provisions of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as “the Act”). 2. The impugned order is being challenged by the petitioner on multiple grounds urged in the petition. 3. Counter affidavit has been filed by the respondent-Detaining Authority to the petition wherein the petition is being opposed on the premise that upon perusal of the dossier and other material furnished to it and after deriving subjective satisfaction, the petitioner came to be detained HCP No. 148/2024. in terms of the detention order and the same was executed on 17th April, 2024 and upon its execution, the detention order, warrant and grounds of detention were read over and explained to the petitioner in the language he understands and in lieu whereof the petitioner scribed his signature in the execution report and that the petitioner was also informed about his right of making a representation to the Detaining Authority or to the Government against his detention and that the petitioner was also informed about the rejection of his representation through Jail authority and that the detention order was passed by the Detaining Authority after complying and fulfilling the statutory requirements and safeguarding constitutional provisions. Heard the learned counsel for the parties and perused the record. 4. Notwithstanding the multiple grounds of challenge urged in the petition by the petitioner, the counsel for the petitioner would insist that the petitioner through his mother submitted a representations before the Detaining Authority, the Government as well as Advisory Board on the incomplete material which was furnished to the petitioner as the petitioner have had made specific request for furnishing of entire material relied upon by the Detaining Authority in order to enable him to make a meaningful representation against his detention and that even then the said representations where not considered or else if considered were not considered with due dispatch and diligence. Learned counsel would further contend that in the grounds of detention, prejudicial activities alleged against the petitioner relates to the year 2020, in connection with FIR No. 295/2020, registered with Police Station, Pulwama, in which FIR, the petitioner was bailed out on 20.12.2023, and that there has been no proximate and live link with any of the activities thereafter alleged against the petitioner with the preventive detention ordered in terms of the impugned order. HCP No. 148/2024. Page 3 of 6 5. On the contrary counsel for the respondents while opposing the aforesaid submissions of the counsel for the petitioner would heavily relied upon and contents of the reply affidavit and also the detention record produced in the open Court and insist for dismissal of the petition on the premise that the preventive detention of the petitioner got necessitated on account of his prejudicial activities and has prayed for the dismissal of the petition. 6. A a closer examination of the grounds of detention would reveal that in the last Paragraph of the said grounds of detention, the Detaining Authority has provided as under “ the activities as projected in the foregoing paras of the instant dossier run heavily against you and are highly prejudicial to the security of the State/UT of J&K” The aforesaid position obtaining in the matter manifestly signifies that the Detaining Authority has not applied its independent mind, while framing the grounds of detention and seemingly has been oblivious to the fact that the framing of grounds of detention is its statutory duty under the Act of 1978, and not of the sponsoring agency. 7. It is also noticed from the detention record that the representation claimed have been submitted by the petitioner has been received by the Government on 22nd April 2024 and rejected on 28th May 2024 as is evident from the communication, addressed by Deputy Secretary to the Government, Home Department to the Detaining Authority vide letter No./PB/V/199/2024/7453471 dated 28th May 2024, informing the Detaining Authority that the representation submitted on behalf of the petitioner stands considered and found without any merit at this stage. It also got revealed from the record that the said representation have had also been considered HCP No. 148/2024. Page 4 of 6 by the Advisory Board, claimed to have been received from the Home Department on 1st May 2024 and rejected while forming its opinion on 15th May 2024. Besides above, interestingly the detention record reveals that in terms of communication addressed by Deputy Secretary to Government, Home Department to District Magistrate Pulwama vide letter no. Home PB- V/199/2024/7453471 dated 3rd September, 2024, the District Magistrate, Pulwama-respondent 2 herein stands informed that the representation of petitioner dated 22nd April 2024, after being considered has been found to be without any merit at the stage. The aforesaid state of affairs manifestly show that the petitioner admittedly have had submitted a representation on 22nd April 2024, against the impugned detention order and the same stands firstly rejected by the Advisory Board on 15th May 2024, thereafter by the Government on 28th May 2024, and lastly by the Government on 3rd September 2024. In any case the said representation has been considered and decided belatedly, that too, without addressing to the grievances of the petitioner claimed to have been made to the respondents for furnishing the entire material, relied upon by the Detaining Authority. The Apex Court in case titled as State of Manipur vs Buyamayum Abdul Hanan (2022) SCC-1455 as also in case titled as Rehmatullah v. State of Bihar, 1979 v.4 SCC 559, in regard to the right of representation against preventive detention has held at paragraphs 4 and 5 respectively as udner:- 4. Before we consider the first submission of learned counsel, a few more facts need be stated. In the writ petition, the petitioner alleged that he had submitted the representation on May 13, 1981 which fact was denied by the respondents in their counter-affidavit; they asserted that the representation was submitted not on May 13, but May 31. This has not been controverted before us by Mr. Garg. It has further been stated in the counter-affidavit and not denied by the petitioner-that the petitioner submitted HCP No. 148/2024. Page 5 of 6 the representation to the Superintendent of the Dist. jail, Dhanbad, where he was detained; the superintendent, District Jail, sent it by registered post on the following day, namely, June 1, and the Home (Special) Department of the Government received it on June 5. It has been stated further in the counter-affidavit-that "the representation contained certain points which needed a report" from the District Magistrate. A copy of the representation was sent on June 10, to the District Magistrate, Dhanbad, through a special messenger, for comments, which were received on June 24. The respondents explained that since the Advisory Board was going to sit for consideration of the petitioner's case on June 29, they sent the representation of the petitioner to the Advisory Board for consideration and placed the comments of the District Magistrate before the Advisory Board. The Advisory Board's report was received on June 29 and the following day, the Home Department 'examined' the representation as well as the opinion of the Advisory Board on June 30, and endorsed the file on July 1 to the Chief Minister who approved the detention. 5. But the respondents have not explained their inaction during (i) the period of five days from June 5 to June 10 taken by the Home Department to send the representation to the District Magistrate for his comments; (ii) the period of fourteen days from June 10 to June 24 taken by the District Magistrate to send his comments and (iii) the period of five days from June 24 to June 29 taken by the Home Department in placing the District Magistrate's comments before the Advisory Board and placing the matter before the Chief Minister. Thus the total period of inaction of the respondents is twenty-four days. Having regard to the aforesaid position of law and what has been noticed in the proceeding paragraphs, qua the representation of the petitioner, it cannot, but be said, that the respondents have violated the constitutional right of the petitioner enshrined under Article 22(5) of the Constitution in the process of detaining him, thus, rendering the impugned order illegal and unsustainable. 9. In view of the aforesaid analysis, the rest of the grounds urged either in the petition or else by the counsel for the petitioner pale into insignificance and need not to be adverted to. 10. Resultantly, the petition succeeds, as a consequence whereby the impugned Order No. 23/DMP/PSA/2024 dated 08.04.2024, is, quashed with HCP No. 148/2024. the direction to the respondents including the concerned Jail authority to release the petitioner-Mudasir Bashir Alliaie S/O Bashir Ahmad Alliaie R/O Trichal Pulwama, District, Pulwama, from preventive detention, unless required in any other case. 11. The detention record produced by counsel for the respondents is returned back to him in the open Court. (Javed Iqbal Wani) Judge SRINAGAR 21.08.2025 “Abdul Rashid” Whether approved for reporting? Yes/No Abdul Rashid Ganaie I attest to the accuracy and authenticity of this document :26.08.2025 09:34