Nizam Ud Din Najar v. Union Territory of J and K and Ors. (Home) (For Final Hearing))

Judgment is pronounced :Full

Nisam-ud-Din Najar, aged 26 years S/O Ghulam Ahmad Najar, R/O Khrew, Tehsil Pampore, District Pulwama through His Father Ghulam Ahmad Najar, aged 61 years.

…Petitioner(s)/Appellant(s) Through: Mr. Wajid Haseeb, Advocate

v/s

¶1Union Territory of J&K Through Principal Secretary, Home Department, J&K Govt. Civil Sectt. Srinagar/Jammu.

¶2District Magistrate, Pulwama.

¶3Sr. Superintendent of Police, Awantipora.

Through: Mr. Furqan Yaqoob, Advocate

CORAM: HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.

JUDGMENT

PER OSWAL-J

¶1The appellant came to be detained pursuant to order of detention bearing No. 15/DMP/PSA/24 dated 04.04.2024, passed by the District

Magistrate, Pulwama (respondent No. 2) in exercise of powers under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to as <the Act=). The appellant challenged the said order of detention by way of HCP No. 136/2024, which, however, came to be dismissed by the learned Writ Court vide judgment dated 21.02.2025 (hereinafter referred to as <the impugned judgment=).

¶2Being aggrieved of and dissatisfied with the impugned judgment dated 21.02.2025, the appellant has assailed the same on the following grounds: -

(i) That the learned writ Court has failed to consider and properly appreciate the grounds urged by the appellant in the writ petition, thereby rendering the impugned judgment unsustainable in law.

(ii) That the learned writ Court has failed to properly appreciate the contention of the appellant that the order of detention has been passed by respondent No. 2 without due application of mind, inasmuch as the grounds of detention are a verbatim reproduction of the police dossier, thereby vitiating the order of detention.

(iii) That the learned writ Court has failed to appreciate that the allegations set out in the grounds of detention had no nexus with the appellant and were fabricated by the police with the sole object of illegally detaining the appellant, thereby vitiating the impugned order of detention.

(iv) That it was specifically urged before the learned writ Court that the appellant had been implicated in FIR No. 57/2021 and was released on bail in February, 2022, and thereafter was not involved in any fresh unlawful activity warranting

or necessitating his preventive detention; however, the learned writ Court has failed to properly appreciate the said contention.

(v) That it was specifically submitted before the learned writ Court that the appellant was not furnished with the relevant material forming the basis of the subjective satisfaction recorded by the detaining authority, as reflected in the order of detention and the grounds of detention; however, the learned writ Court has failed to properly appreciate the said contention, thereby vitiating the impugned judgment.

(vi) That the learned writ Court has failed to appreciate that the appellant had submitted a representation against the order of detention, which was not considered and disposed of by the respondents in accordance with law and within a reasonable time, thereby violating the constitutional safeguards available to the appellant.

¶3Learned counsel for the appellant submitted that the appellant had filed a representation against the order of detention to Government, but the same was not considered by the competent authority in accordance with law. It was further submitted that the appellant had earlier been proceeded against under Section 107 Cr.P.C., and upon his release, no fresh illegal activity was attributed to him so as to warrant his preventive detention under the Act. It was also contended that respondent No. 2 has failed to apply his mind while recording the requisite satisfaction, inasmuch as the appellant was never arrested in FIR No. 90/2020, but in FIR No. 57/2021, thereby reflecting non-application of mind on the part of the detaining authority.

¶4Per contra, learned counsel for the respondents has argued that the learned writ Court has rightly considered the contentions of the

appellant and after considering the same only, the writ petition preferred by the appellant was dismissed. He has further argued that the procedural safeguards under the Constitution and the Act were duly followed while issuing and executing the order of detention.

¶5Heard learned counsel appearing for the parties and perused the record.

¶6The record reveals that, pursuant to the dossier prepared by respondent No. 3, a proposal was submitted to respondent No. 2 for detaining the appellant under the Act on the ground that his activities were prejudicial to the security and sovereignty of the country. Acting upon the said dossier, respondent No. 2 issued the order of detention dated 04.04.2024. The appellant's contention that the grounds of detention are a mere replica of the dossier is misplaced. A comparative analysis of the dossier and the grounds of detention reveals that the latter is not a verbatim reproduction of the former. Accordingly, the said contention of the appellant is rejected.

¶7It was also contended that the detaining authority had failed to apply its mind, inasmuch as reference was made to FIR No. 90/2020, in which the appellant was never arrested. It is true that both the dossier and the grounds of detention make reference to FIR No. 90/2020 registered with Police Station, Khrew. The record indicates a discrepancy; while the SHO's initial report referenced only FIR No. 57/2021, the subsequent dossier and grounds of detention inadvertently included FIR No. 90/2020, an evident typographical oversight. In such circumstances, the appellant cannot derive any

benefit from the said typographical mistake, particularly when the correct FIR number stands duly reflected in the dossier prepared by the SHO, Police Station, Khrew.

¶8It was next contended that the representation submitted by the appellant was not considered by the respondents. The detention record reveals that the appellant had submitted a representation dated

10.04.2024 to the Home Department; however, the same was not considered by respondent No. 1. Though the representation submitted to the District Magistrate, Pulwama (respondent No. 2) was considered and rejected, the representation addressed to the Government was required to be independently considered and decided in accordance with law. The mere fact that the Advisory Board had considered the representation does not absolve respondent No. 1 of its obligation to consider the representation. The failure on the part of respondent No. 1 to consider and decide the representation vitiates the order of detention and renders the same illegal.

¶9In this context, it would be apposite to take note of the judgment of the Hon'ble Supreme Court of India in Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others, (2021) 20 SCC 98, wherein the Supreme Court considered the legal effect of delay in deciding a detenu's representation, as well as the failure to communicate the decision to the detenu, on the validity of the order of detention. The governing principle has been succinctly laid down in paragraph 47 of the said judgment. The relevant extract reads as under: <47. By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which

emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu <as soon as may be= and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate government are intended to ensure that the representation of the detenu is considered by the appropriate government with a sense of immediacy. The State Government failed to do so. The making of a reference to the Advisory Board could not have furnished any justification for the State Government not to deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Governments in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA. The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution.=

¶10We have examined the judgment rendered by the learned writ Court and we find that the pivotal issue noticed by us hereinabove has escaped the consideration of the learned writ Court.

¶11In light of the above, we are of the considered view that the judgment impugned in this appeal is not sustainable in the eyes of law and accordingly, the same is set aside. Resultantly, the order of detention bearing No. 15/DMP/PSA/24 dated 04.04.2024, passed by the District Magistrate, Pulwama (respondent No. 2) under Section 8 of the Jammu and Kashmir Public Safety Act, 1978 is quashed. The

appellant shall be released forthwith, if not required in connection with any other case.

¶12The record shall be returned to the learned counsel appearing for the respondents.

¶13Disposed of as above along with connected CM(s), if any. (Rajnesh Oswal) (Arun Palli) Judge

Chief Justice Jammu

25.03.2026 Madan Verma-Secy

Whether order is speaking? Yes/No. Whether order is reportable? Yes/ No.

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Case No: LPA No. 50/2025 Reserved on: 04.03.2026 Pronounced on:25.03.2026 Uploaded on: 25.03.2026 Whether the operative part or full