Summary
| Category | Data |
|---|---|
| Case Name | HCP/62/2025 of SHAMAS DIN TH KAKU DIN Vs UT OF J AND K TH COMMISSIONER SECRETARY TO GOVERNMENT HOME DEPARTMENT JAMMU AND OTHERS |
| CNR | JKHC020023042025 |
| Date of Registration | 03-05-2025 |
| Decision Date | 01-09-2025 |
| Disposal Nature | Disposed Off |
| Judgment Author | Hon’ble Mr. Justice M A Chowdhary |
| Court | High Court of Jammu & Kashmir and Ladakh at Jammu |
| Bench | Single-Judge Bench (Hon’ble Mr. Justice M A Chowdhary) |
| Overrules / Affirms | Affirms existing Supreme Court precedents on Article 22(5) and mechanical reproduction doctrine |
| Type of Law | Constitutional and criminal procedural law (preventive detention) |
| Questions of Law |
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| Ratio Decidendi |
The Court held that Article 22(5) requires the detaining authority to communicate to the detenu both the grounds of detention and his distinct right to make a representation before that authority; omission vitiates the order. Mechanical reproduction of the police dossier as the grounds of detention demonstrates non-application of mind and invalidates the subjective satisfaction required. Vague DDR entries without an FIR or specific overt acts cannot by themselves justify preventive detention. The PSA must be strictly construed in favor of personal liberty and statutory safeguards. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court |
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| Facts as Summarised by the Court |
The petitioner was detained under PSA 1978 by the District Magistrate, Kathua, via Order No. PSA/146 dated 13.02.2025, to prevent public-order threats, based on DDR entries and preventive actions under Section 128 of the BNSS, 2023, alleging terrorist sympathies and OGW activities without any FIR or identified overt acts. The grounds were lifted verbatim from the police dossier, and the detaining authority failed to inform him of his right to representation before that authority. |
| Citations |
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What’s New / What Lawyers Should Note
- The detaining authority must inform the detenue, at the time of detention, of his right to make a representation to that authority in addition to the right to approach the Government; omission vitiates the order.
- Grounds of detention that mirror the police dossier without independent reasoning demonstrate non-application of mind and are legally unsustainable.
- DDR entries, if not followed by an FIR or specific overt acts, cannot by themselves constitute valid grounds for preventive detention.
- High Court emphasizes strict construction of PSA and Article 22 safeguards to protect personal liberty.
- This judgment can be cited to quash PSA detentions where procedural safeguards under Article 22(5) are breached.
Summary of Legal Reasoning
- The Court examined the detaining authority’s record and found no FIR registered despite DDR entries alleging cognizable offences, undermining the basis for detention.
- Under Article 22(5), a detenu must receive clear communication of his right to representation before the detaining authority and copies of materials; mere reference to representation to the Government is insufficient.
- Reliance on Sophia Gulam Mohd. Bham to underscore the necessity of furnishing grounds and material in the detenue’s own language.
- Application of Jai Singh and Rajesh Adnani principles: verbatim reproduction of police dossiers amounts to mechanical action, failing the requirement of independent subjective satisfaction.
- Invocation of Icchu Devi to stress strict construction of preventive detention provisions given the preciousness of personal liberty.
- Conclusion: procedural lapses and non-application of mind render the PSA order void; the petitioner must be released.
Arguments by the Parties
Petitioner
- The detaining authority acted mechanically, reproducing police dossiers without independent application of mind.
- The detenue was not informed of his right to make a representation to the detaining authority or the timeframe for doing so.
- DDR entries cited were vague, based on conjecture, and did not include specific overt acts.
- No prior FIR was lodged, indicating lack of cognizable offence.
Respondent
- The detenue was involved in anti-national activities as an Over Ground Worker for terrorist outfits.
- All safeguards under the PSA 1978 were observed; the grounds and detention warrant were explained in the detenue’s language.
- He was informed of his right to make a representation to the Government.
- Preventive detention was necessary to maintain public order.
Factual Background
Shamas Din was detained on 13 February 2025 under the Jammu & Kashmir Public Safety Act, 1978, by the District Magistrate, Kathua, to pre-empt public-order threats. The detention order referenced preventive actions under Section 128 of the BNSS, 2023 and two DDR entries alleging terrorist links and assistance, without registering any FIR. The petitioner challenged the order, arguing non-application of mind by the detaining authority and breach of Article 22(5) safeguards. The State defended the detention as lawful and necessary. On 1 September 2025, the High Court quashed the order for procedural and substantive infirmities.
Statutory Analysis
- Article 22(5), Constitution of India: mandates communication of grounds of detention, disclosure of supporting material, and a clear right to representation before the detaining authority.
- Jammu & Kashmir Public Safety Act, 1978 (PSA): confers preventive detention powers subject to Article 22 safeguards.
- Section 128, BNSS 2023: provides for preventive action by police, but DDR entries alone do not replace the need for FIR in cognizable offences.
- Strict construction principle: any breach of procedural requirements invalidates the detention order.
Alert Indicators
- ✔ Precedent Followed
Citations
- HCP No. 62/2025
- CNR JKHC020023042025
- Sophia Gulam Mohd. Bham v. State of Maharashtra & Ors., AIR 1999 SC 3051
- Jai Singh & Ors. v. State of Jammu & Kashmir, (1985) 1 SCC 561
- Rajesh Vashdev Adnani v. State of Maharashtra & Ors., (2005) 8 SCC 390
- Smt. Icchu Devi Choraria v. Union of India & Ors., AIR 1980 SC 1983