WP(Crl) No.280/2023 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 16.05.2025 Pronounced on: 23.05.2025 WP(Crl) No.280/2023 SAJAD AHMAD RATHER ...Petitioner(s) Through: - Mr. Bhat Shafi, Advocate. Vs. UT OF J&K & ORS …Respondent(s) Through: -Mr. Faheem Nisar Shah, GA. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE. JUDGMENT 1) Through the medium of present petition, the petitioner has assailed detention order bearing No.15-DMK/PSA of 2023 dated 30.05.2023, issued by District Magistrate, Kupwara. In terms of the aforesaid order, Sajad Ahmad Rather (for short "the detenue") has been placed under preventive detention and lodged in Central Jail, Jammu Kothbhalwal, with a view to prevent him from indulging in activities which are prejudicial to the security of the State. 2) The petitioner has contended that the allegations mentioned in the grounds of detention have no nexus with the detenue and that the grounds of detention are vague, non-existent, on the basis of which no prudent man can make an effective representation. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material that formed basis of the impugned detention order has not been supplied to the petitioner. It has been also WP(Crl) No.280/2023 contended that the representation submitted by the petitioner against his detention has not been considered, as no result of consideration thereof has been conveyed to the petitioner. 3) The respondents have resisted the petition by filing their reply affidavit, wherein they have contended that the activities of the detenue are highly prejudicial to the 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 has been further contended 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 also averred 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 in accordance with law occupying the field. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 4) I have heard learned counsel for parties and perused the record. 5) 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 representation of the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights. 6) The petitioner has specifically pleaded in para (3) of his petition that he made representation before the respondents including the detaining WP(Crl) No.280/2023 authority but the same has not been considered. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit. The representation of petitioner is available in the detention record, which means that the same has been received by the respondents. There is, however, nothing in the detention record that would suggest that the representation of the petitioner has been considered by the respondents. The non-consideration or an unreasonably belated consideration of the representation indisputably amounts to violation of constitutional safeguards provided by the provisions of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law. In my said view, I am supported by the judgments of the Supreme Court in the cases of Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559, and Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others, (2021) 20 SCC 98. 7) Viewed thus, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from preventive custody forthwith provided he is not required not required in connection with any other case. 8) The detention record be returned to the learned counsel for the respondents. (Sanjay Dhar) Judge SRINAGAR 23.05.2025 "Bhat Altaf-Secy" Whether the order is speaking: Yes/No