The High Court held that a detention order is unsustainable if the detaining authority does not specify the time-limit for representation under Article 22(5), fails to supply essential material (e.g., proceedings under Sections 107/151 CrPC), and mechanically copies the police dossier—strictly affirming Supreme Court precedents and binding on subordinate courts.
Summary
| Category | Data |
|---|---|
| Case Name | HCP/147/2024 of ABRAR AFZAL TH IFRET NAZ Vs UT OF J AND K TH COMMISSIONER SECRETARY TO GOVERNMENT HOME DEPARTMENT JAMMU AND OTHERS |
| CNR | JKHC020063272024 |
| Date of Registration | 04-12-2024 |
| Decision Date | 26-08-2025 |
| Disposal Nature | Disposed Off |
| Judgment Author | HON’BLE MR. JUSTICE M A CHOWDHARY |
| Court | High Court of Jammu & Kashmir and Ladakh |
| Bench | Single Judge |
| Precedent Value | Binding on subordinate courts |
| Overrules / Affirms | Affirms existing Supreme Court and High Court precedents |
| Type of Law | Constitutional Law (Article 22), Preventive Detention (J&K PSA), Criminal Procedure (CrPC) |
| Questions of Law | Whether non-communication of the time-limit for representation, non-supply of material, and mechanical reproduction of the police dossier vitiate a PSA order? |
| Ratio Decidendi | The detention order failed Article 22(5) of the Constitution and Section 13 of the J&K PSA by not informing the detenue of the time-limit for representation and by not supplying the record of proceedings under Sections 107/151 CrPC, thus disabling effective representation. The grounds were verbatim from the police dossier, showing non-application of mind. Fresh grounds are required for each order (C.B. Kahar), and mechanical reproduction of a dossier violates the procedural safeguards of preventive detention. Consequently, strict construction of personal liberty safeguards mandates quashing such orders. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon | The court applied Article 22(5) safeguards—requiring communication of representation rights and time-limits—and PSA Section 13. It emphasized fresh subjective satisfaction (per C.B. Kahar) and invalidated mechanical grounds as non-application of mind (per Jai Singh, Rajesh Adnani). |
| Facts as Summarised by the Court | The detenue was placed under preventive detention (PSA) on 31.10.2024 for alleged public-order activities based on six FIRs and three CrPC complaints (two under Sections 107/151). He challenged non-communication of representation rights/time, non-supply of material (107/151 CrPC record), and mechanical dossier grounds. The detaining authority relied on the same FIRs and complaints used in a 2022 PSA order. |
| Citations |
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Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts |
| Persuasive For | Other High Courts |
| Overrules | The impugned PSA Order No.DMR/INDEX/07 of 2024 dated 31.10.2024 |
| Follows | Jitendra v. Barabanki; C.B. Kahar v. Kalna; Santosh Acharya; Hilal Ahmad Khuroo; Jai Singh; Rajesh Adnani |
What’s New / What Lawyers Should Note
- A detention order must specify the exact time-limit for filing representation to the detaining authority under Article 22(5).
- Complete material, including CrPC 107/151 proceedings, must be supplied before authorization to file a meaningful representation.
- Verbatim reproduction of a police dossier in grounds evidences non-application of mind and invalidates subjective satisfaction.
- Fresh grounds (distinct from earlier orders) are mandatory for each PSA detention (per C.B. Kahar).
- Strict construction of preventive detention safeguards reinforces personal liberty under Articles 21–22.
Summary of Legal Reasoning
- Article 22(5) requires communication of representation rights and the period (till State Government approval) for challenging detention.
- Under PSA Section 13 read with Article 22, all material on which detention rests (e.g., CrPC 107/151 record) must be furnished to the detenue.
- Supreme Court dicta (C.B. Kahar) mandate fresh grounds for subsequent detentions; reliance on previous grounds is impermissible.
- Mechanical copying of a police dossier into the detention order amounts to non-application of mind (per Jai Singh, Rajesh Adnani).
- Failure on any procedural safeguard vitiates the order, compelling strict judicial scrutiny given the severity of preventive detention.
Arguments by the Parties
Petitioner
- Detaining authority did not inform the detenue of his right/time to represent.
- Essential material (CrPC 107/151 proceedings) was withheld, disabling effective representation.
- Grounds of detention mirror the police dossier, showing mechanical action.
Respondents
- The detaining authority applied mind, based on a dossier prepared by SSP Rajouri.
- All material was supplied and explained in the detenue’s language.
- Previous PSA detention on the same FIRs justified preventive action for public order.
Factual Background
- On 31.10.2024, the District Magistrate, Rajouri, issued Order No.DMR/INDEX/07 of 2024 under the PSA to prevent the detenue from prejudicial public-order activities.
- The order relied on six FIRs (Sections 323, 307, 336, 427, etc.) and three CrPC complaints (Sections 107/151).
- The petitioner was previously detained under PSA on similar grounds in November 2022.
- He challenged the order on grounds of Article 22(5) non-compliance, non-supply of material, and mechanical grounds.
- The High Court quashed the order for procedural and constitutional infirmities.
Statutory Analysis
- Article 22(5), Constitution of India: mandates prompt communication of grounds and time-limit for representation.
- Section 13, J&K Public Safety Act, 1978: procedural requirement to afford opportunity of representation.
- CrPC Sections 107/151: proceedings forming part of the detaining material must be furnished to the detenue.
Alert Indicators
- ✔ Precedent Followed – Strict adherence to Article 22(5) and PSA safeguards per Supreme Court.
Citations
- 2004 Cri.L.J. 2967 (Jitendra v. Barabanki)
- AIR 1989 SC 1234 (C.B. Kahar v. Kalna)
- AIR 2000 SC 2504 (State of Maharashtra v. Acharya)
- (1985) 1 SCC 561 (Jai Singh v. State of J&K)
- (2005) 8 SCC 390 (Rajesh Vashdev Adnani v. Maharashtra)
- AIR 1980 SC 1983 (Icchu Devi Choraria v. Union of India)