The High Court of Jammu and Kashmir ruled that a preventive detention order is vitiated if the detenu is not specifically informed of their right to make representation to the detaining authority, and not just to the Government. This judgment affirms and applies Supreme Court precedent, stressing strict adherence to constitutional safeguards under Article 22(5), and is binding on all preventive detention matters within the territorial jurisdiction of the High Court.
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 and Kashmir and Ladakh at Jammu |
| Bench | Single Judge Bench (HON’BLE MR. JUSTICE M A CHOWDHARY) |
| Precedent Value | Binding within the territorial jurisdiction of the High Court; persuasive elsewhere |
| Overrules / Affirms |
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| Type of Law | Preventive Detention; Constitutional Law; Administrative Law |
| Questions of Law |
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| Ratio Decidendi |
The Court held that it is a binding constitutional obligation on the detaining authority to inform the detenu, at the outset, of the right to make a representation to the detaining authority itself, in addition to the Government. Omission to do so renders the detention order void ab initio. The Court further held that a detention order based almost verbatim on the police dossier, without independent satisfaction, is a mechanical exercise and invalid. Cumulatively, these lapses amount to a breach of the procedural safeguards mandated under Article 22(5) and the J&K Public Safety Act, rendering the detention order unlawful. |
| Judgments Relied Upon |
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| Logic / Jurisprudence / Authorities Relied Upon by the Court | The Court emphasized that personal liberty is a fundamental right protected by Article 21, subject to the procedural safeguards of Article 22, which require strict compliance. It relied on Supreme Court dicta demanding strict construction of detention statutes, strict communication of representation rights, and the necessity of independent application of mind by detaining authorities. |
| Facts as Summarised by the Court | The detenu, Shamas Din, was detained under Order No. PSA/146 dated 13.02.2025, on the basis of vague DDRs and preventive actions under Section 128 of the BNSS, without any criminal case being registered. The detenue argued non-application of mind, failure to communicate the right to represent, and replication of police dossier as grounds. Respondents alleged anti-national activity and compliance with safeguards, but were unable to prove communication of the right to represent to the detaining authority or independent application of mind. |
| Citations |
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Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts and authorities within the jurisdiction of the High Court of Jammu and Kashmir and Ladakh. |
| Persuasive For | Other High Courts; Supreme Court; administrative bodies dealing with preventive detention throughout India. |
| Follows |
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What’s New / What Lawyers Should Note
- Reiterates that the detenu must be informed of their right to make a representation specifically to the detaining authority, and not just to the Government; failure to do so vitiates the detention order.
- Clarifies that a detention order based on a mechanical, verbatim reproduction of the police dossier, without independent evaluation or application of mind, is unsustainable.
- Emphasizes the necessity of proximate and credible material (not just vague or unsubstantiated DDRs) to support preventive detention.
- Lawyers challenging preventive detention should scrutinise not only if representation rights have been communicated, but also the source, specific acts, and degree of independent assessment in the grounds of detention.
Summary of Legal Reasoning
- Grounds for Detention: The Court scrutinized the preventive detention order, noting it was based only on vague DDRs and preventive actions under Section 128 BNSS that had not led to any criminal case. The police failed to register an FIR even when recording alleged cognizable acts.
- Communication of Representation Rights: The Court extensively cited Supreme Court authority (Sophia Gulam Mohd. Bham v. State of Maharashtra) holding that the detenu must be expressly informed of the right to represent to the detaining authority itself, distinct from the Government. The record showed only communication of the right to represent to the Government.
- Function of the Detaining Authority: The Court clarified that the detaining authority must act on representations before government approval; after approval it becomes functus officio. Thus, the right and its timing are fundamental.
- Mechanics of the Detention Order: The grounds of detention were, in substance, a near-verbatim recitation of the police dossier, which, as per Jai Singh and Rajesh Vashdev Adnani, reveals lack of application of mind, rendering the order invalid.
- Procedural and Constitutional Safeguards: The Court stressed that Article 22’s procedural safeguards are integral and even minor non-compliance mandates quashing the order (Icchu Devi Choraria). Protection of personal liberty requires strict, scrupulous compliance.
- Cumulative Deficiencies: The cumulative effect of failing to inform the detenu of all his representation rights, lack of credible supporting material, and non-application of mind was held to vitiate the order ab initio.
Arguments by the Parties
Petitioner
- The detaining authority failed to inform the detenue of his right to make a representation to the detaining authority.
- The detention order and execution report do not specify the timeframe for making such representation.
- Grounds of detention are vague and are a verbatim reproduction of the police dossier, evidencing lack of proper application of mind.
- The DDRs and preventive actions do not allege specific overt acts or constitute proximate credible evidence; no criminal case has been registered.
Respondent
- The detenue was involved in anti-national activities and was suspected of being an OGW for terrorist outfits.
- The detention warrant and grounds of detention were duly explained to the detenue, and he was informed of his right to make a representation to the Government.
- All constitutional and statutory safeguards were observed; the detention was passed strictly as per the J&K Public Safety Act, 1978.
- Sought dismissal of the petition and affirmation of the detention order.
Factual Background
The petitioner, Shamas Din, was detained under Detention Order No. PSA/146 dated 13.02.2025 issued by the District Magistrate, Kathua, to prevent him from acting in a manner prejudicial to maintenance of public order. Detention was based on preventive actions recorded under Section 128 of the BNSS, 2023, and vague DDRs at Police Station Billawar. No FIR had been filed or criminal case registered against him. Petitioner alleged non-communication of rights, lack of specific allegations, and mechanical copying of the police dossier as grounds; respondents asserted compliance and alleged anti-national activity.
Statutory Analysis
- Article 22(5) of the Constitution: Interpreted to require that the detenu must be informed of all grounds and their right to make representation to the detaining authority, not just the Government.
- J&K Public Safety Act, 1978: The procedural safeguards and requirements for subjective satisfaction of the detaining authority were strictly construed.
- Section 128 of BNSS, 2023: Examined as to adequacy of preventive actions and whether mere preventive entries, without FIR or criminal prosecution, suffice for preventive detention (held insufficient).
- Supreme Court Precedents: Cited to clarify interpretation and mandatory nature of safeguards.
Alert Indicators
- ✔ Precedent Followed – The judgment affirms and applies existing Supreme Court and High Court law on procedural safeguards in preventive detention.
Citations
- Sophia Gulam Mohd. Bham v. State of Maharashtra & Ors., AIR 1999 SC 3051
- Jai Singh and others v. State of Jammu and Kashmir, (1985) 1 SCC 561
- Rajesh Vashdev Adnani v. State of Maharashtra and others, (2005) 8 SCC 390
- Smt. Icchu Devi Choraria v. Union of India & Ors., AIR 1980 SC 1983