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Jammu & Kashmir High Court - Srinagar Bench

Izhar Ul Islam vs Union Territory Of J&K Through ... on 15 September, 2025

Author: Vinod Chatterji Koul

Bench: Vinod Chatterji Koul

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR
                           ...
                               HCP No.190/2024
                                                         Reserved on: 08.07.2025
                                                    Pronounced on: 15.09.2025

Izhar ul Islam, aged 34 years S/o Abdul Majeed Ganaio, R/o Hassan Pora,
Bijbehara, Anantnag A/P Firdous Abad Lane No. 3 Batmaloo, Srinagar through his
father
                                                              ....... Petitioner(s)

Through: Mr. Z. A. Qureshi, Advocate with Ms.Rehana Fayaz

                                     Versus

1. Union Territory of J&K through Principal Secretary, Home Department , J&K
   Govt. Civil Sectt. Srinagar/Jammu
2. Director General of Police J&K Srinagar4
3. District Magistrate, Srinagar
4. Sr. Superintendent of Police , Srinagar
5. Superintendent of Central Jail, Srinagar .
                                                               ....Respondent(s)
Through: Mr. Mohsin Qadri, Sr. AAG

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

1. Through the medium of this petition, Order no. DMS/PSA/10/2024 dated 22.04.2024 (impugned detention order) passed by District Magistrate, Srinagar

- respondent no. 3, (for short „detailing authority‟) whereby detenu, namely, Izhar ul Islam, S/o Abdul Majeed Ganai, R/o Hassan Pora, Bijbehara, Anantnag A/P Firdous Abad Lane No. 3 Batamaloo, Srinagar, has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State, is sought to be quashed and the detenu set at liberty on the grounds made mention of therein.

2. The case set up by the petitioner in this petition is that the order of detention has been executed that too when the detenu was facing trial in FIR No.59/2012 under Section 302, 301 RPC and FIR No. 128/2020 under Section 16, 19, 20 ULA(P) Act 302 IPC 7/27 IA Act in Police Station Batamaloo. In these two FIRs, the detenu is stated to have been bailed out and there were no further activity recorded against the detenu except the aforesaid FIRs inasmuch as the documents pertaining to taking into custody the detenu under Section 107, 1 HCP No. 190/2024 151 have not been provided neither it has been mentioned in the grounds of detention whether any bond down was executed against him as provided under Section 107 and 151 nor he has violated the terms and conditions of the bond. It is also submitted that the FIRs in which the detenu was facing trial are still pending before Trial court and he has been bailed out even the bail so granted has not been called in question or challenged by the State nor the detaining authority has shown awareness regarding the grant of bail to the detenu inasmuch as the respondent no. 3 has passed the impugned detention order against detenu mechanically without application of mind as the allegations are imaginary without any basis or material record inasmuch as detaining authority has mentioned various allegations in grounds of detention, however, no specific allegation has been given regarding detenu in the allegations mentioned in grounds of detention, not even an iota of connection is given in the grounds of detention connecting the detenu with the allegations, inasmuch as the detaining authority has not applied its mind to the facts of the case but has acted on the report submitted by Senior Superintendent of Police, Srinagar, as the grounds of detention do not indicate any criminal proceedings allegedly initiated under Section 107/151 Cr. PC, for which he has been bound down for keeping peace and tranquillity. The only reason for detaining the detenu was that the elections had to be held in the year 2024 and in case the detenu is allowed to move freely, he will motivate the youth to create disturbances in the area but disturbing the elections can not be a ground to detain the detenu under the provisions of PSA.

3. Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State and, therefore, his remaining at large is a threat to the security of State. 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 and considered the matter. I have gone through the detention record produced by the counsel appearing for respondents.

5. Learned senior counsel for petitioner states that the detaining authority in the grounds of detention has shown its awareness about the booking of the detenu under Section 107/151 of the Criminal Procedure Code for having been allegedly involved in the activities prejudicial to the peace and tranquillity and on the said basis of some discreet reports claimed to have been received by the detaining authority from police agencies, ordered the detention of the detenu and that neither on account of his booking under Section 107/151 Cr. PC, nor the detenu could have been detained under preventive detention, if at all, the detenu was involved in the activities prejudicial to the peace and tranquillity nor on the basis of the so-called discreet report referred to in the grounds of detention having formed the basis for detention of the detenu as same were not furnished to him to enable him to make an effective representation against his detention. It is also stated by counsel for detenu that the grounds of detention are vague, indefinite and cryptic, inasmuch as grounds of detention does not disclose any activity on the basis whereof detention can be passed and that detaining authority has not attributed any specific allegation against detenu.

6. On the contrary, Mr. Jahingeer A Dar, GA, while opposing the submission of Mr. Wajid Haseeb, would vehemently contend that the order under challenge has been passed by the detaining authority validly and legally owing to the activities of the detenu being prejudicial to security of the State.

7. The submission that has been strenuously urged by learned counsel for detenu and is also made mention of in the petition, is that representation having been filed by detenu through his father has not been considered by the respondents. Perusal of the detention record does not reveal or indicate anything with regard to receipt or consideration of the representation. It is also evident from the pleadings of the respondents as contained in reply affidavit as well as detention record that the representation submitted on behalf of the detenu has not been considered by the respondents so far. Admittedly, a copy of representation, placed on record by petitioner as Annexure-V to writ petition, has been filed by detenu through his father, against detention on 30.04.2024 and the same has not been considered till date. To this contention of petitioner, the reply does not make even a whisper as to whether representation has been received or not and whether representation has been considered or not. Detention record produced by counsel for respondents also comprises of report of Advisory Board dated 3 HCP No. 190/2024 14.05.2024, which reveals "no representation seems to have been made by the Detenue as no such representation is lying on the material placed before" it.

8. 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 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.

9. 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.

10. 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 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.

11. 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.

12. 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."

13. 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, submit its report to the Government within six weeks from the date of detention.

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. 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)

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 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.

18. 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 7 HCP No. 190/2024 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.

19. In the case in hand, it is an admitted position that representation had been made by petitioner‟s father, but there is no mention about filing of representation in the Reply by respondents whereas detention record produced by them also substantiates the case of petitioner that his representation has not been produced before Advisory Board for consideration, which fact is evident from perusal of report of the Advisory Board. In such circumstances, the right guaranteed to petitioner under Article 22(5) of the Constitution has been violated and, resultantly, impugned order of detention is vitiates and is liable to be quashed, as such.

20. For the reasons discussed above, the detention Order no.DMS/PSA/10/ 2024 dated 22.04.2024, passed by District Magistrate, Srinagar, is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case.

21. Disposed of.

22. Registry to return detention record to learned counsel for respondents.

(Vinod Chatterji Koul) Judge Srinagar 15.09.2025 (Qazi Amjad, Secy) 8 HCP No. 190/2024