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Jammu & Kashmir High Court - Srinagar Bench

Mohammad Shafi Dar vs Ut Of J&K And Others on 17 December, 2025

Author: Vinod Chatterji Koul

Bench: Vinod Chatterji Koul

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT SRINAGAR
                              ...
                            HCP No. 229/2025
                                                       Reserved on: 25.11.2025
                                                    Pronounced on: 17.12.2025
                                                       Uploaded on 17.12.2025
                                               Whether the operative part or full
                                                  judgment is pronounced :Full
Mohammad Shafi Dar
                                                           ..........Petitioner(s)
      Through: Mr. Wajid Mohammad Haseeb, Adv.
            V/s

UT of J&K and others
                                                         .........Respondent(s)
      Through: Ms. Rahila Khan, Assisting Counsel

CORAM:
            HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE

                              JUDGEMENT

1. In the instant writ petition, exercise of powers under and in terms of Article 226 of the Constitution of India is sought for so as to quash Detention Order no.DIVCOM-"K"/106/2025 dated 12.06.2025 passed by Divisional Commissioner, Kashmir - respondent no.2 (detaining authority), whereby detenu, namely, Mohammad Shafi Dar S/o Lt. Gh. Mohd Dar R/o Tulkhan Bijbehara District Anantnag, has been placed under preventive detention with a view to prevent him from committing any of the acts within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the "Act") and directing his lodgment in Central Jail, Kathua.

2. The case set up by the petitioner, in this petition, is that the detenu was arrested by police in the year 2024 without any reason and justification and was taken into Police Station Bijbehara, where he was implicated in case FIR No. 90/2024. The detenu was admitted to bail by the Court of Special Judge (Principal Sessions Judge) Anantnag on 28.05.2024 and he was released from custody. The detenu was again arrested in the month of June 2025 and shifted to District Jail, Kathua to be detained under preventive detention in terms of impugned detention order. It is stated that the respondent no.2 on the basis of some dossier submitted by SSP Anantnag 1 HCP No. 229/2025 without application of mind and without evaluating the allegations has passed the impugned detention order, inasmuch as the grounds of detention are replica of dossier. The allegations mentioned in the grounds of detention have no nexus with the detenu as nothing was recovered from him whereas the grounds of detention shows that seizer has been effected from the detenu and furthermore, after his release on bail, no fresh activity has been attributed nor he has violated the bail conditions inasmuch as the detenu was already admitted to bail in case FIR No. 90/2024 as mentioned in the grounds of detention. Despite having knowledge of this important fact, the detaining authority has not reflected the compelling reasons in the grounds of detention to justify the impugned detention order. Further, it is also submitted that the last alleged activity attributed to the detenu has allegedly taken place in April 2024 and he was subsequently released from custody on bail in May 2024 and after his release no fresh activity has been attributed to the detenu. The delay of more than twelve months between the last alleged activity and the order of detention has snapped the „live link and proximity and failure on the part of detaining authority in explaining such delay in any manner renders the detention order unreasonable and unjustified and deserves to be quashed.

3. It is further stated that at the time of execution of detention order, the detenu was not given an opportunity to make a representation and even he was not informed that he has a right to make a representation against his detention to the detaining authority apart from making representation to Government, as is evident from letter dated 12.06.2025 issued by detaining authority to the detenu nor the respondents disclosed to him before whom he can make the representation, and instead he was informed to make representation before an authority which has not passed the impugned detention order which is total violation of rights of the detenu as guaranteed under Article 22 of the Constitutional of India inasmuch as the detaining authority has not informed the detenu about the period within which he was supposed to make a representation, Further, the respondents has to furnish the relevant material like copies of dossier, order of detention, FIR, statement U/S 161 A Cr. P.C, seizure memo , FSL report to the detenu so as to enable him to make an effective representation against his detention to the 2 HCP No. 229/2025 Advisory Board and the filing of said representation before the Advisory Board is a constitutional and statutory right to the detenu. It is also stated that the detenu was not detained in accordance with the provisions of Prevention of illicit Traffic in Narcotic Drug and Psychotropic Substance Act 1985, as the object of passing of detention as pointed out in grounds of detention is alien to the said act and neither the detaining authority has passed the detention order in accordance with the procedure laid down in the Act.

4. Respondents have filed reply affidavit, insisting therein that activities of detenu in indulging in narcotic trade are highly prejudicial and will cause affect of drug abuse in the society and his remaining at large involves a great risk. 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.

5. I have heard learned counsel for parties. I have gone through the detention record produced by the counsel for the respondents and considered the matter.

6. In view of the rival contentions of parties and submissions made by the learned counsel for the parties, it would be relevant to go through the record on the file. Perusal of grounds of detention reveals that these are replica of dossier with interplay of some words here and there, which, therefore, shows non-application of mind and in the process of deriving of subjective satisfaction, has become causality. While formulating grounds of detention, detaining authority has to apply its own mind. It cannot simply reiterate whatever is written in the dossier. It is pertinent to mention here that the observations of the Supreme Court in the case of Jai Singh and ors vs. State of J&K" (AIR 1985 SC 764) which are reproduced hereunder:

"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father‟s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of ........

Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner."

7. This Court in the case of Noor-ud-Din Shah v. State of J&K and others 1989 SLJ 1, quashed the detention order as it was found that grounds of detention were reproduction of the dossier supplied to the detaining authority and held that it amounted to non-application of mind. The Court observed:

"I have thoroughly examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag, as also the grounds of detention formulated by the latter for the detention of the detenu in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case, he has acted as an agent of the police. It was his legal duty to find out if the allegations levelled by the police against the detenu in the dossier were really going to effect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenu, so as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order in a routine manner being in different to the import of preventive detention as or detained in the Act, Passing of an order without application of mind goes to the root of its validity, and in that case, the question of going into the genuineness or otherwise of the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act."

8. Taking into account above settled legal position, grounds of detention and dossier, if similar in language, it tantamount to non-application of mind on the part of detaining authority. As already noted, in the instant case, it is evident that dossier and grounds of detention contain similar expressions which show that there has been non-application of mind on the part of detaining authority. Impugned order of detention is, therefore, unsustainable in law on this ground.

9. It is also urged by counsel for petitioner, as is also mentioned in the petition, that representation dated 23.06.2025, made by detenu through his brother-in-law has not been considered by respondents. Respondents admit making of representation dated 23.06.2025 by detenu‟s brother-in-law. They claim that representation was considered and rejected. And rejection of representation was conveyed to detenu on 01.08.2025. It is evident from record and reply filed by respondents that there is delay in conveying rejection of representation to detenu and insofar as conveying rejection of representation to representee/brother-in-law of detenu is concerned, he has come to know about rejection only when respondents filed their reply. It is not only receiving and considering a representation by authorities concerned under the Act, but it is also their duty to convey such a decision well within time to representee. In this regard, theSupreme Court in Tara Chand v. State of Rajasthan and others, 1980 (2) SCC 321 and Raghavendra Singh v. Superintendent, District Jail, Kanpur and others (1986) 1 SCC 650, has held that if there is inordinate delay in considering the representation that would clearly amount to violation of the provisions of Article 22(5) as to render the detention unconstitutional and void. In Rajammal v. State of Tamil Nadu and others, 1999(1) SCC 417, it has been held that it is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words "as soon as may be" in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest.

10. In K. M. Abdulla Kunhi v. Union of India (1991) 1 SCC 476, it has been held that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in disposal of representation would be breach of the constitutional imperative and it would render the continued detention impermissible and illegal.

11. Right to make a representation is guaranteed right under Article 22(5) of the Constitution of India. It requires detaining authority to communicate grounds of detention as soon as may be; and afford detenu an earliest opportunity to make a representation. Both these procedural requirements 5 HCP No. 229/2025 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.

12. The provisions of PIT NDPS At subscribe to the mandate of Article 22(5). Subsection (3) of Section 3 thereof contains a requirement that for the purposes of clause (5) of Article 22 of the Constitution of India, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention.

13. 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 3 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 3(3) of the Act, thus, also embodies the second 6 HCP No. 229/2025 requirement of Article 22(5) of affording to detenu the earliest opportunity of making a representation against the order to the appropriate government.

14. 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.

15. As noted above, it has been contention of learned counsel for petitioner that a representation was made by detenu‟s brother-in-law, but that has not been considered and decided muchless conveyed to him. The requirement under Section 3 of the Act of the disclosure and communication of grounds of detention and affording of an opportunity to detenu to make a representation against such an order to appropriate government, is distinct from reference to the Advisory Board. The Supreme Court in Jayanarayan Sukul v. State of West Bengal, (1970) 1 SCC 219, laid emphasis on the expeditious consideration of the representation by the appropriate government. In the said case, a representation was made by petitioner against detention order to the State Government on 23.6.1969, which was rejected on 19.8.1969, as a reference regarding detention order was pending before Advisory Board. The 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 7 HCP No. 229/2025 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)

16. 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 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.

17. In the case in hand, it is an admitted position that representation had been made by detenu‟s brother-in-law on 23.6.2025, but its rejection as is claimed by respondents in their reply has been communicated to detenu on 01.08.2025, which reflects inordinate delay on the part of respondents. In that view of matter, impugned order of detention is vitiated.

18. Further to add here that in Ankit Ashok Jalan v. Union of India (2020) 16 SCC 127, 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 [Pankaj Kumar Chakrabarty v. State of W.B., (1969) 3 SCC 400, it was stated by the Supreme Court that the obligation on the part of the 8 HCP No. 229/2025 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 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 9 HCP No. 229/2025 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.

18. [...] it is well accepted that the representation must be considered with utmost expedition; and the power of the Government is completely independent of the power of the Advisory Board; and the scope of consideration is also qualitatively different, there is no reason why the consideration by the Government must await the decision by the Advisory Board. None of the aforesaid cases even remotely suggested that the consideration must await till the report was received from the Advisory Board."

20. Right to make a representation by detenu, it has been said in Sarabjeet Singh Mokha (supra), creates a corresponding duty upon the Government to consider the same expeditiously and delay occasioned in deciding it and delay occasioned in deciding representation renders detention of detenu illegal. Detenu has every right to know that as to whether his representation was considered by respondents justly, fairly and reasonably.

21. There is no gainsaying that representation of detenu‟s brother-in-law against impugned detention order has not been considered and decided well in time muchless conveyed to him by respondents, which violates the procedural rights under the Constitution and the Statute, thereby vitiates and invalidates impugned order of detention.

22. For the reasons discussed above, the petition is disposed of and detention Order No.DIVCOM-"K"/106/2025 dated 12.06.2025, passed by Divisional Commissioner, Kashmir, is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of.

23. Detention record be returned to counsel for respondents.

(Vinod Chatterji Koul) Judge Srinagar 17.12.2025 Qazi Amjad Secy.

                                         Whether approved for reporting? Yes/No




                                                              11
QAZI AMJAD YOUSUF
I attest to the accuracy and                                                           HCP No. 229/2025
authenticity of this document

18.12.2025 10:59