Jammu & Kashmir High Court - Srinagar Bench
Furqan Mushtaq Wani vs Ut Of J&K Through Principal Secretary on 18 September, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Serial No. 12
Regular Cause list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP 318/2024
Reserved on : 18.09.2025
Pronounced on : 29 .09.2025
Furqan Mushtaq Wani, Aged 19 Years ...Appellant(s)/Petitioner(s)
S/O Mushtaq Ahmad Wani
R/OSharshali Khrew Tehsil Pampore, District
Pulwama
Through his Father
Mushtaq Ahmad Wani, Aged 56 Years
Through: Mr. Wajid Mohammad Haseeb, Advocate
Vs.
1. UT of J&K Through Principal Secretary,
...Respondent(s)
Home Department, J&K Govt. Civil
Sectt., Srinagar/Jammu
2. District Magistrate, Pulwama.
3. Sr. Superintendent of Police, Awantipora
Through: Mr. Furqan Yaquib Sofi, GA
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE.
JUDGMENT
1. The instant petition has been preferred by the father of the detenue, thereby challenging detention order No. 28/DMP/PSA/24 dated 31.08.2024 (hereinafter referred to as the "impugned order") passed by District Magistrate Pulwama, whereby Mr. Furqan Mushtaq Wani S/O Mushtaq Ahmad Wani R/O Sharshali Khrew Tehsil Pampore, District Pulwama, has been taken into preventive custody and lodged in Central Jail Jammu under Section 8 of J&K Public Safety Act.
Factual Matrix:
2. It is stated that the detenue was first arrested in the year 2022 by Police Station Khrew and implicated in FIR No. 46/2022. The detenue was juvenile at that point of time and subsequently was produced before the Juvenile Justice HCP 318/2024 Page 1 of 9 Board and during enquiry subjected the detenue to assessment and after assessment the juvenile was admitted to bail and released from custody.
3. It is further stated that the detenue was arrested again in last week of August 2024 by Police Station Khrew and subsequently detained in terms of impugned detention order and shifted to Central Jail Jammu.
4. Petitioner has challenged the detention order on the ground that the allegations mentioned in the grounds of detention have no nexus with the detenue, and have been fabricated to justify the illegal action of detaining the detenue; the detention order has been passed on mistaken identity, as the detenue has never established any contact, physically or virtually as alleged in the grounds of detention; the allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations; no specific allegation has been made regarding the detenue in the grounds of detention, not even an iota of connection is referred to therein; the impugned order of detention suffers from complete non-application of mind on part of the detaining authority; the last alleged activity attributed to the detenue has taken place in the year 2022, when the detenue was a juvenile and thereafter no fresh activity has been attributed to the detenue, as such, the detention order lacks proximity and any live link; the detaining authority has not arrived at subjective satisfaction while passing the impugned detention order; the grounds formulated do not warrant passing of a detention order against a person, who has just attained the age of majority; the respondent No. 3 has not placed relevant material before the detaining authority like assessment report conducted during the enquiry and the bail order passed in the FIR, as such, non-placement of the relevant material before the detaining authority renders the detention order unreasonable and unjustified; the detention order has been passed primarily in view of the ensuing elections, however the said object is alien to the object as HCP 318/2024 Page 2 of 9 laid in Section 8 of the Public Safety Act, 1978, as such the detention order is illegal; the detenue has been admitted to bail in due course of law and the detaining authority has alleged that the detenue has managed the bail, which is not reasonable and proper on part of the detaining authority; the detaining authority has not prepared the grounds of detention by itself, which is a pre- requisite for it before passing any detention order. The detaining authority has relied on the police dossier and neither perused any supporting material nor enquired about the existence of the facts, as such, the grounds of detention seems to be replica of the police dossier. A representation was made before the respondent No. 2 by the petitioner on 14.09.2024, where he was directed to wait for some and after around half an hour, he was handed over the copy of rejection of representation, as such, the representation was not considered reasonably; the petitioner, on the aforesaid basis seeks compensation to the tune of Rs. Two Lakhs from the respondents for illegally detaining the detenue, inflicting torture to him and violating his fundamental right of life and liberty guaranteed by the Constitution.
5. Per contra, in the reply affidavit filed by the respondents, it is stated that the activities of the detenue have been found prejudicial to the security of the State, police recommended his preventive detention and in this behalf submitted dossier supported by relevant material to the District Magistrate, where the material/record was examined and after finding the preventive detention of the detenue necessary, the impugned order was passed with the sole aim and object to deter the detenue from acting in any manner prejudicial to the security of the State; the detenue was taken into preventive custody and was served with necessary record, the detenue was also informed about his right to submit representation against the detention; the father of the detenue had filed the representation and the same was rejected on 14.09.2024 and copy of the HCP 318/2024 Page 3 of 9 rejection order was forwarded to the Jail Authorities for handing over the same to the detenue; no representation of the similar nature was submitted to the Home Department as neither there is any record to that extent, nor any consideration order in this regard has been received from the Home Department, as such an inference can be drawn that the petitioner had not preferred any representation to the Home Department; the grounds urged by the petitioner are legally misconceived, untenable and without any merit and the order of detention has been passed with complete independent application of mind to the facts and circumstances of the case; there is no vagueness or staleness in the grounds of detention; the contents of warrant and the grounds of detention were read over and explained to the detenue in the language understandable to him and in lieu thereof, the detenue has put his signature on the execution report; the material relied upon was also served to the detenue against proper receipt.
6. Heard learned counsel for the parties and perused the material on record.
7. The challenge to the impugned order is made on variety of grounds like non furnishing of entire detention material to the detenue; the representation made for furnishing all the requisite material, which too was rejected; the allegations of the year 2022 were taken into consideration when the detenue was a juvenile; the bail order granted in favour of the detenue was not considered.
8. The detention record made available would indicate that the detenue has been furnished in as many as 28 leaves of detention documents comprising copyof detention order (01 leaf), Notice of detention (01 Leaf), grounds of detention (02 Leaves), Dossier of detention (04 Leaves) Copies of FIR, Statement of Witnesses and other relevant documents (20 Leaves), therefore, the plea taken by the learned counsel for the petitioner that the detenue was not supplied the entire detention material is belied by the records, therefore, is turned down.
HCP 318/2024 Page 4 of 9
9. The next contention of the learned counsel for the petitioner that the non- supply of the detention material to the detenue has prevented him from making an effective representation against his detention, in view of the findings returned in para-8 supra, also loses significance and is accordingly rejected.
10. The next submission of the learned counsel for the petitioner that the representation filed against the detention of the detenue has not been considered is also of no help to the petitioner as the detention record would show that the representation of the petitioner has been considered and rejected being without merit in terms of rejection order dated 14.09.2024 issued by District Magistrate, Pulwama.
11. The next submission made by the learned counsel for the petitioner is that the respondents have failed in forwarding the representation of the petitioner made against the impugned order to the Advisory Board as was required to be done in terms of Section 19 of the Public Safety Act and in view of the matter that the impugned order cannot withstand the test of law.
12. The learned counsel for the petitioner in support of his submission has referred to and relied upon the judgment of the Apex Court delivered in case titled "Prakash Chandra Yadav vs. The State of Jharkhand &Ors" reported as 2023 LiveLaw(SC) 529.
13. The submission made by the learned counsel carries weight as the detention record would demonstrate that the Advisory Board while disposing of the reference, has, in ambiguous terms, in Para 4 of its report dated 26.09.2024 held that no representation seems to have been made by the detenue, as no such representation has ever been placed before us. Para 4 of the report dated 26.09.2024 of the Advisory Board, being relevant is taken note of herein.
"The grounds of detention formulated by the Detaining Authority are sufficiently supported by the dossier/material placed before him by the Sr. Superintendent of Police, HCP 318/2024 Page 5 of 9 Awantipora, which we have carefully perused. No representation seems to have been made by the Detenue as no such representation is lying on the material placed before us. There is, thus, no rebuttal to the grounds of detention formulated by the Detaining Authority or the material relied upon. The grounds of detention are well founded."
14. The Supreme Court in case titled "Lakshman Khatik vs. State of West Bengal"reported as (2024) 9 SCC 53 has held as under:
"All the three grounds on which the District Magistrate purports to have reached the required satisfaction are based on incidents which took place in rapid succession in the month of August, 1971. The first incident of unloading 5 bags of rice took place in the afternoon of 3-8-1971. The second incident took place on 5-8-1971 also in the afternoon practically at the same place as the first incident. This time also some rice was removed from the trucks carrying rice. The third incident took place in the afternoon of 20-8-1971 also at the same place. That also related to the removal of some rice from loaded trucks It is not clear from the record whether the petitioner was prosecuted for the theft, especially, when it is seen that the first incident of removal of rice was witnessed by two constables. However that might be, it appears to us that the District Magistrate could not have been possibly satisfied about the need for detention on 22-3-1972 having regard to the detenu's conduct some 7 months earlier. Indeed mere delay in passing a detention order is not conclusive, but we have to see the type of grounds given and consider whether such grounds could really weigh with an officer some 7 months later in coming to the conclusion that it was necessary to detain the petitioner to prevent him from acting in a manner prejudicial to the maintenance of essential supplies of foodgrains. It is not explained why there was such a long delay in passing the order. The District Magistrate appears almost to have passed an order of conviction and sentence for offences committed about 7 months earlier. The authorities concerned must have due regard to the object with which the order is passed, and if the object was to prevent disruption of supplies of foodgrains one should think that prompt action in such matters should be taken as soon as incidents like those which are referred to in the grounds have taken place. In our opinion the order of detention is invalid.
15. In case titled "Sarabjeet Singh Mokha vs. District Magistrate Jabalpur and Others" reported as 2021 (20) SCC 98, it has been held: HCP 318/2024 Page 6 of 9
"The requirement under Section 8 of the disclosure and communication of the grounds of detention and the affording of an opportunity to the detenu of making a representation against such an order to the appropriate government, is distinct from the reference to the Advisory Board. In Jayanarayan Sukul v. State of West Bengal 45, a Constitution Bench of this Court laid emphasis on the expeditious consideration of the representation by the appropriate government. In that case, a representation was made by the petitioner against an order of detention passed under Section 3(2) of the Preventive Detention Act 1950. The petitioner made a representation to the State Government on 23 June 1969, which was rejected on 19 August 1969, as a reference regarding the detention order was pending before the Advisory Board. The Court held that there was an inordinate delay in considering the representation of the petitioner. Justice AN Ray (as the learned Chief Justice then was), speaking for the Bench, observed:45
(1970) 1 SCC 219 26 PART D "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.
[...] 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 HCP 318/2024 Page 7 of 9 exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu."
16. This being the position, the submission made by the learned counsel for the petitioner gets corroborated that the respondents have failed in forwarding the representation to the Advisory Board, thereby violating the statutory safeguards provided in terms of Section 19 of the Act. It would be profitable to reproduce Section 19 of the Act herein below:
"Section 19: Reference to Advisory Board. - Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 18, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by the District Magistrate mentioned in subsection (2) of Section 12 also the report by such officer under sub-section (3) of that section."
17. Learned counsel for the petitioner has successfully shown to this Court that the petitioner had moved a representation against the impugned order before the respondents and the same, though having been decided much prior in time to that of the report of the Advisory Board, has not been forwarded to the Advisory Board, as such, not considered by it. The representation has been moved by the petitioner on 13.09.2024, which was considered and rejected by the detaining authority on 14.09.2024 and the Advisory Board framed its report in the matter on 26.09.2024, which makes one to presume safely that the representation had HCP 318/2024 Page 8 of 9 been moved, which has been considered but not forwarded to Advisory Board, as required under the statutory provisions of law.Respondents having failed to comply with the statutory requirements and the mandate of law as laid down in the judgment supra, the impugned order cannot withstand the test of law.
18. Since the Court is convinced that the failure of the respondents in forwarding the representation of the petitioner to the Advisory Board has prejudiced the right of the detenue, as provided in terms of the statutory provisions of law, therefore, the court does not require to elaborate the other grounds of challenge taken by the learned counsel for the petitioner in support of the petition.
19. It being so, the petition succeeds and is allowed as such, the impugned order No. 28/DMP/PSA/24 dated 31.08.2024, passed by District Magistrate Pulwama, by virtue of which the detenue namely Mr. Furqan Mushtaq Wani S/O Mushtaq Ahmad Wani R/O Sharshali Khrew Tehsil Pampore, District Pulwama, had been detained in preventive detention is quashed and the detenue is directed to be set at liberty forthwith.
20. Detention record be returned to the learned counsel for respondents against proper receipt.
(MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR:
29.09.2025 "Adil Ismail"
Whether the Judgment is Speaking? Yes
HCP 318/2024 Page 9 of 9