HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP no.402/2024 Reserved on: 09.07.2025 Pronounced on: 23.07.2025 Nazir Ahmad Chopan, aged 43 years S/o Abdul Aziz Chopan R/o Checki Raithan Khansahib, Budgam through his wife Zaitoon ……. Petitioner(s) Through: Mr. Sheikh Mushtaq, Advocate Vs. 1. Union Territory of J&K through Principal Secretary to Home Department, Civil Secretariat, Srinagar/ Jammu 2. District Magistrate, Budgam 3. Superintendent Central Jail, Jammu ..…Respondent(s) Through: Mr. Bikramdeep Singh, Dy. AG CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. Through the medium of this writ petition, the petitioner prays for quashment of Order no.DMB/PSA/08 of 2024 dated 01.08.2024 passed by District Magistrate, Budgam - respondent no.2 (for short “detaining authority”) whereby detenu, namely, Nazir Ahmad Chopan, S/o Abdul Aziz Chopan R/o Checki Raithan Khansahib, Budgam (for short “detenu”) has been placed under preventive detention with a view to prevent him from indulging in the activities which are prejudicial to the maintenance of public order, on the grounds made mention of therein. 2. Learned counsel for the petitioner has contended that the detaining authority has passed the impugned detention order mechanically without application of mind, inasmuch as the grounds of detention are vague, indefinite, non- existent on which no prudent man can make an effective representation against such allegations. It is further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It is urged that there has been non-application of mind on the part of detaining authority while passing the impugned detention order, inasmuch as the detenu has been shown involved in series of FIRs however he has already been admitted to bail in the above mentioned FIRs which fact 2 HCP No. 402/2024 has not been mentioned in the grounds of detention, inasmuch as a representation through his wife has been filed before respondent no.1 but no decision has been taken on such representation nor anything regarding the same communicated to the detenu/petitioner. 3. Respondents have filed counter affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the maintenance of public order. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant. 4. I have heard learned counsel for parties. I have gone through the detention record produced by counsel for respondents and considered the matter. 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 following grounds: (I) There has been non-application of mind on the part of the detaining authority as the detenu has already been admitted to bail in FIR No.101/2023 as also in other cases/FIRs but this fact has not been shown in the grounds of detention. (II) That although a representation was also submitted against the detention by the detenu through his wife before the respondents yet the same was not considered rendering the detention order unsustainable in law. 6. It has been contended that the impugned detention order suffers from non- application of mind on the part of the detaining authority, inasmuch as the grounds of detention do not bear any reference to the fact that the detenu has been admitted to bail in FIR No.101/2023 in terms of order dated 16.12.2023 passed by learned Additional Sessions Judge, Presiding Officer Fast Track Court, Kulgam. A copy of the order issued by the said Court in this regard has been placed on record by the petitioner so the non- mentioning of this important fact in the grounds of detention, exhibits non- application of mind on the part of detaining authority. This shows that the 3 HCP No. 402/2024 detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law. Reference in this regard is made to “Anant Sakharam Raut vs. State of Maharashtra and Ors” AIR 1987 SC 137. 7. The next ground projected by the petitioner is that the representation filed on 12.08.2024 by detenu through his wife post detention has neither been considered nor decided nor any notice/information about any decision taken thereon has been conveyed or communicated so far to detenu/petitioner, thereby violating the guaranteed rights of petitioner and consequently vitiating impugned order of detention.. Although in their reply, respondents stated that they have considered and rejected the representation of petitioner on 17.03.2025, yet the rejection order has neither been conveyed to him nor appears to have been sent to Advisory Board, which vitiates impugned order of detention. 8. In the context of Reply filed by respondents, it is worth to go through detention record, more particularly Report of Advisory Board. Perusal of Report of Advisory Board dated 29.08.2024, interestingly, mentions, “No representation seems to have been made by the Detenue as no such representation is lying on the material placed before us”. 9. It is well settled that detaining authority must provide detenu a very early opportunity to make a representation. The detaining authority is also required to consider the representation as soon as possible and this preferably must be before the representation is forwarded to Advisory Board. The representation must be forwarded to Advisory Board before the Board makes its report. The consideration by detaining authority of representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. The appropriate Government/detaining authority is to exercise its opinion and decision on the representation of detenu before sending the case along with detenu’s representation to Advisory Board. Reference in this regard is made to Jayanarayan Sukul v. State of W.B. (1970) 1 SCC 219; Pankaj Kumar 4 HCP No. 402/2024 Chakraborty v. State of W.B. (1969) 3 SCC; Frances Corallie Mullin v. W.C.Khambra (1980) 2 SCC 275; and Ankit Ashok Jalan v. Union of India and others, (2020) 16 SCC 127. 10. Right to make a representation is an enshrined right guaranteed under Article 22(5) of the Constitution of India. It incorporates a dual requirement: first, it requires detaining authority to communicate grounds of detention as soon as may be; and second, it requires to afford detenu an earliest opportunity to make a representation. Both these procedural requirements are mutually reinforcing. The communication, as soon as may be, of the grounds of detention is intended to inform the detenu of the basis on which the order of detention has been made. The expression “as soon as may be” imports a requirement of immediacy. The communication of grounds is in aid of facilitating right of detenu to submit a representation against order of detention. In absence of grounds being communicated, detenu would be left in the dark about the reasons which have led to issuance of order of detention. The importance which the constitutional provision ascribes to communication of grounds as well as affording of an opportunity to make a representation is evident from the use of the expression “as soon as may be” in the first part in relation to communicating the grounds and allowing the detenu “the earliest opportunity” of availing of the right to submit a representation. Thus, the significance of Article 22 of the Constitution is that representation submitted by detenu must be disposed of at an early date. The communication of grounds of detention, as soon as may be, and the affording of earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless detaining authority deals with representation and communicates its decision with expedition. 11. The provisions of J&K Public Safety Act subscribe to the mandate of Article 22(5). Section 13 thereof contains a requirement that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than ten days from the date of detention communicate to him, in the 5 HCP No. 402/2024 language which is understandable to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation, against the order to the Government. 12. Article 22(5) of the Constitution provides for communication of grounds on which order of detention is made by detaining authority “as soon as may be”. Section 13 (1) of the Act uses the expression “as soon as may be”, qualifying it with the requirement that the communication of grounds should ordinarily not be later than five days and, in exceptional circumstances, for reasons to be recorded in writing not later than ten days from the date of detention. Section 8(1) of the Act, thus, also embodies the second requirement of Article 22(5) of affording to detenu the earliest opportunity of making a representation against the order to the appropriate government. 13. Section 15 of the Act mandates a reference to the Advisory Board constituted under Section 14 of the Act. What Section 15 says is profitable to be reproduced hereunder: “Section 15. Reference to Advisory Board. In every case where a detention order has been made under this Act, the Government shall, within four weeks from the date of detention under the order place before the Advisory Board constituted by it under section 14, the grounds on which the order has been made, the representation, if any, made by the person affected by the order and in case where the order has been made by an officer, also report by such officer under sub-section (4) of section 8.” 14. Under Section 15 of the Act, the appropriate government has to place the grounds on which the order of detention has been made within four weeks from the date of detention of the person together with a representation, if any, made by the person affected by the order of detention before the Advisory Board constituted under the provisions of Section 14 of the Act. The Advisory Board, under the provisions of Section 16 of the Act, after considering the material placed before it and after calling for such further information as it may deem necessary from the Government or from the person called for the purpose through the Government or from the person concerned and if in any particular case it considers it essential so to do or, if the person concerned desires to be heard, after hearing him in person, 6 HCP No. 402/2024 submit its report to the Government within six weeks from the date of detention. 15.. Article 22(5) of the Constitution reflects keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and, therefore, it incorporates procedural safeguards which mandate immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by detenu must be disposed of at an early date. The communication of grounds of detention, as soon as may be, and affording of earliest opportunity to submit a representation against order of detention will have no Constitutional significance unless detaining authority deals with representation and communicates its decision with expedition. 16. The Supreme Court in the case of Jayanarayan Sukul (supra) laid emphasis on the expeditious consideration of the representation by the appropriate government. The Supreme Court held that there was an inordinate delay in considering representation of petitioner. It was observed: “18. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. […] 20. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board.” (emphasis supplied) 17. As has been held by the Supreme Court in Jayanarayan Sukul (supra), four principles are required to be followed with respect to representation of a detenu. First, appropriate authority is bound to give an opportunity to 7 HCP No. 402/2024 detenu to make a representation and to consider it as early as possible. Secondly, consideration of detenu’s representation by appropriate authority is entirely independent of any action by Advisory Board including consideration of representation of detenu by Advisory Board. Thirdly, there should not be any delay in the matter of consideration and it has to be remembered that Government has to be vigilant in governance of citizens. A citizen’s right raises a correlative duty of the State. Fourthly, appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu’s representation to Advisory Board. 18. In the case of Ankit Ashok Jalan (supra) it was observed by the Supreme Court that consideration of representation(s) by appropriate Government and by Advisory Board would always be qualitatively different and the power of consideration by appropriate Government must be completely independent of any action by Advisory Board. In the case of Pankaj Kumar Chakrabarty (supra) it was stated by the Supreme Court that the obligation on the part of the Government to consider representation would be irrespective of whether the representation was made before or after the case was referred to the Advisory Board. Any delay in consideration of representation would not only be an irresponsible act on the part of appropriate authority but also unconstitutional. 19.. In Sarabjeet Singh Mokha v. District Magistrate Jabalpur and others reported in (2021) 20 SCC 98, the Supreme Court has reproduced certain observations made by the Supreme Court on the consideration of representation by appropriate government and by the Advisory Board in Ankit Ashok Jalan (supra), which are reproduced hereunder: “39 In a recent decision of a three judge Bench of this Court in Ankit Ashok Jalan v. Union of India51, Justice UU Lalit revisited the body of precedent on the subject and noticed the qualitative difference between the consideration of a representation by the appropriate government on the one hand and by the Advisory Board on the other. Justice UU Lalit, speaking for himself and Justice Indu Malhotra (with Justice Hemant Gupta dissenting52) observed: “16. These decisions clearly laid down that the consideration of representations by the appropriate Government and by the Board would always be qualitatively different and the power of consideration by the appropriate Government must be completely independent of any action by the Advisory Board. In para 12 of the decision in Pankaj Kumar Chakrabarty [Pankaj Kumar Chakrabarty v. State of W.B., (1969) 3 SCC 400 : (1970) 1 SCR 543] it was stated that the obligation 8 HCP No. 402/2024 on the part of the Government to consider representation would be irrespective of whether the representation was made before or after the case was referred to the Advisory Board. As stated in para 18, this was stated so, as any delay in consideration of the representation would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional. The contingency whether the representations were received before or after was again considered in para 29 of the decision in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] .” Justice UU Lalit categorized the different stages for when a representation is received and disposed, with the underlying principle that the representation must be expeditiously disposed of, at every stage: “17. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in the following four categories: 17.1. If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board. 17.2. If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] and Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation. 17.3. If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816], the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board. 17.4. If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition. 20. In the case in hand, it is an admitted position that representation had been made by detenu through his wife, which, according to respondents, was rejected on 17.03.2025. In this regard respondents have annexed with their Reply copy of communication no.Home/PB-V/438/2024/7542706 dated 17.03.2025, addressed by Additional Secretary to Government, Home Department, Government of J&K, to District Magistrate, Budgam, mentioning therein about rejection of representation of petitioner. It is 9 HCP No. 402/2024 worthwhile to mention here that the said communication bottoms out the case of respondents as they admit that representation was made by petitioner on 12.08.2024, but after lapse/delay of 08 months, representation has been rejected, although as is claimed by petitioner rejection has even not been communicated to detenu. Even if we go by the contents of reply and communication dated 17.03.2025, there has been inordinate delay in considering and deciding representation of detenu/petitioner, which also vitiates impugned order of detention. 21. From the above legal position on the subject, it is clear that non- consideration or an unreasonably belated consideration of the representation tantamount to non-compliance of Article 22(5) of the Constitution, which in turn renders the detention unsustainable in law. 22. For the foregoing reasons, the petition is disposed of and detention Order no.DMB/PSA/08 of 2024 dated 01.08.2024, passed by District Magistrate, Budgam, is quashed. Respondents are directed to release the detenu from the preventive custody forthwith, provided he is not required in any other case. 23. Registry to return detention record to learned counsel for respondents. (Vinod Chatterji Koul) Judge Srinagar 23.07.2025 (Qazi Amjad, Secy) Whether approved for reporting? Yes/No