Jammu & Kashmir High Court - Srinagar Bench
Ishfaq Ahmad Wani Aged 30 Years S/O Late ... vs Union Territory Of J&K Through ... on 18 July, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
HCP No. 162/2024
Reserved on: 03.07.2025
Pronounced on: 18.07.2025
Ishfaq Ahmad Wani Aged 30 Years S/o Late Ama Wani R/o Cheer Pora
Uttersoo Shangus Anantnag through his brother Manzoor Ahmad Wani.
....... Petitioner(s)
Through: Mr. Abid Hamid, Advocate
Versus
1. Union Territory of J&K through Principal Secretary, Home Department ,
J&K Govt. Civil Sectt. Srinagar/Jammu
2. District Magistrate, Anantnag
3. Superintendent of Polic Cental Jail, Kotbhalwal Jammu.
....Respondent(s)
Through: Mr. Ilyas Laway, GA
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this petition, Order no.14/DMA/PSA/ DET/ 2024 dated 20.04.2024, passed by District Magistrate, Anantnag - respondent no.2, (for short 'detailing authority') whereby detenu, namely, Ishfaq Ahmad Wani, S/o Late Ama Wani R/o Cheer Pora Uttersoo Shangus, Anantnag, has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State/UT, 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 detenu along with other OGWs as alleged in the grounds of detention was apprehended by the Police Anantnag in case FIR No. 49/2024 for investigation, although, the evidence so collected against the detenu is not sufficient to the extent to book him in the case under substantive laws but his involvement cannot be ruled out. However, he has no connection with any terrorist organization or with terrorist cadres, being vague, imaginary and 1 HCP no.162/2024 without basis. It is also averred that detaining authority has passed the impugned detention order mechanically without application of mind, inasmuch as the detenu has neither past criminal record nor has any FIR lodged against him but has been falsely implicated in FIR No. 49/2024 U/S 18, 20 UAPOA 7/25 Arms Act ¾ Exp. Subs Act of P/S Anantnag, when the detenu has never been put to investigation/enquiry in connection with the said FIR nor the detenu or his any family member are aware of any such FIR. It has been alleged in the grounds of detention that the detenu is OGW with banned terrorist organization but the respondents have failed to name the terrorist with whom he has association, inasmuch as the grounds of detention, are vague, irrelevant, non-existent and the allegations are bereft of specific details and without any reference to the past conduct of the detenu. The grounds of detention do not disclose any activity which would be prejudicial to the security of State much less the grounds which are based on mere apprehensions inasmuch as the detaining authority has not applied its mind to the facts of the case but has acted to the report submitted by Sr. Superintendent of Police, Anantnag, as the grounds of detention do not indicate any criminal case being registered against the detenu at any point of time but has been bound down for keeping peace and tranquillity. The detenu is neither associated with any organization nor involved in any such activity which is prejudicial to the security of the State.
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.
2 HCP no.162/20245. The counsel for petitioner states that in the dossier it is stated that in the year 2002, sister and brother of detenu was brutally killed by foreign terrorists, therefore, the detenu can by no stretch of imagination support terrorism or indulge himself in any activity which would be prejudicial to the Security of State or maintenance of public order. It is also stated that there was no justification for the District Magistrate , Anantnag to order detention of the detenu on the strength of FIR No. 49/2024 which the fact of the matter is that the detenu was never put to investigation/enquiry in connection of the said FIR nor has the detenu or his any other family aware of any such FIR, therefore, it can never be inferred that the detenu was/is OGW with banned terrorist organization inasmuch as the detaining authority has not attributed any specific allegation against the detenu . The vague allegations levelled against the detenu are based on mere whims, caprices and surmises of the detaining authority and are ipso-facto insufficient and inconsistent to the provisions of Public Safety Act. The grounds are bereft of specific details which renders the order of detention vague and non-existent in the eyes of law. Since the detenu is a student with no past criminal background, thereof, the order of detention is unwarranted. Learned counsel for petitioner has made reference to Dr. Ram Krishan Bhardwaj v. The State of Delhi and others , 1953 SCR 708; Shalini Soni (Smt.) and others v. Union of India and others 9180) 4 SCC 544; Icchu Devi Choraria (Smt.) v. Union of India and others (1980) 4 SCC 531; and Jai Singh and ors v State of Jammu and Kashmir (AIR 1985 SC 764). It is being also stated that in the grounds of detention it is mentioned that detenu was bound down and released on surety bond. He also avers that although the respondents in their counter/reply affidavit state that representation of detenu was rejected, but detenu/petitioner was never informed about rejection of representation, as such, the guaranteed rights of detenu have been violated.
6. On the contrary, the counsel for respondents, while opposing the submission of counsel for petitioner, would vehemently contend that the order under challenge has been passed by the detaining authority validly and legally owing to the activities the detenu being prejudicial to the Security of the State.
3 HCP no.162/20247. 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 JayanarayanSukul v. State of W.B. (1970) 1 SCC 219; Pankaj Kumar Chakraborty v. State of W.B. (1969) 3 SCC; FrancesCorallie Mullin v. W.C. Khambra (1980) 2 SCC 275; and Ankit Ashok Jalan v. Union of India and others, (2020) 16 SCC 127.
8. 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 4 HCP no.162/2024 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.
9. Section 13 J&K Public Safety Act 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.
10. 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.
11. 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."
12. 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 5 HCP no.162/2024 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.
13. 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.
14. 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 6 HCP no.162/2024 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)
15. 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.
16. 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.
17. 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 7 HCP no.162/2024 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 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. In the case in hand, it is an admitted position that representations had been made by detenu through his mother and brother to respondent no.1, which, according to respondents, were rejected. However, there is nothing on record to show that rejection of representations has been forthwith communicated to detenu/petitioner inasmuch as the rejection of 8 HCP no.162/2024 representation, according to counsel for petitioner, has to come fore only when respondents filed their counter. It is pertinent to mention here that it is not only consideration and/or rejection of representation of detenu, but it is important to communicate such a rejection with reasons to detenu/petitioner.
In the event there is any delay in supplying/ communicating the order of rejection of the representation to the detenu/ petitioner, it would also cause prejudice to the detenu as he would be deprived of his right to seek remedy vis-à-vis the order of rejection, which may prove fatal to the order of preventive detention. Thus, it is fundamental to interfere with the order of detention in view of failure of respondents to communicate rejection of representation to detenu/petitioner inasmuch as non-communication and/or delay in communication of rejection of representation to detenu/petitioner forms a part of infraction on detenu's constitutional right under Article 22(4) of the Constitution of India. Reference is made to Biren Dutta v. Chief Commissioner of Tripura, AIR 1965 SC 596; State of Punjab v. Sukhpal Singh, (1990) 1 SCC 35; and Khaja Bilal Ahmed v. State of Telangana, 2020 (13) SCC 596.
19. For the reasons discussed above, the detention Order no. 14/DMA/ PSA/ DET/2024 dated 20.04.2024, passed by District Magistrate, Anantnag is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case.
20. Disposed of.
21. Registry to return detention record to learned counsel for respondents.
(Vinod Chatterji Koul) Judge Srinagar 18.07.2025 (Qazi Amjad, Secy) Whether approved for reporting? No QAZI AMJAD YOUSUF I attest to the accuracy and authenticity of this document 9 18.07.2025 16:52 HCP no.162/2024