HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

HCP No.145/2025

Date of pronouncement: 21.05.2026

Date of uploading: 21.05.2026

Date

CR

Saddam Husain, Age 33 years, S/o

Mohd. Butt, At Present Central Jail,

Kot Bhalwal, Jammu, Jammu and

Kashmir.

Through father Mohd. Butt, Age 61

years, S/o Mohd. Ismail, R/o Ward

No.4, near GHS Lohai, Tehsil Lohai

Malhar, Thall, District Kathua, J&K

...Petitioner(s)

Through: Mr. Sanchit Verma, Advocate.

Vs

01. UT of J&K through Commissioner/Secretary,

(Home), Civil Secretariat, Jammu/Srinagar.

02. District Magistrate, Kathua.

03. Senior Superintendent of Police, Kathua.

04. Superintendent, Central Jail, KotBhalwal, Jammu, J&K.

…Respondent(s)

Through: Mr. Suneel Malhotra, GA.

CORAM: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

JUDGMENT

21.05.2026 (ORAL)

01. Challenge in this petition has been thrown to detention order No.

PSA/159 dated 21.05.2025, passed by respondent No.2-District

Magistrate, Kathua under Section 8 of the J&K Public Safety Act,

1978 [“PSA”], vide which, petitioner came to be detained.

Sr. No. 01

HCP No.145/2025 Page No.2

02. As factual matrix of the case would unfurl, SSP Kathua (the

sponsoring authority) vide his communication dated 16.05.2025, on

the basis of recommendations of the District Screening Committee,

submitted a dossier to District Magistrate, Kathua, the detaining

authority, describing the petitioner as OGW, a hard core facilitator of

terrorist activities and a great sympathizer of banned terrorist

organizations. It was alleged that anti-national activities of the

petitioner continue unabated, causing widespread fear and insecurity

among general public and are prejudicial to the security of state,

peace and tranquility of the region.

03. Recommendation of the sponsoring authority is premised on an FIR

No.01/2019 under Section 3-EAO/120-B/121-A RPC of P/S CID CI

Jammu and preventive measures initiated against him under Section

126 BNS of P/S Malhar.

04. On the basis of these allegations captured in the dossier, the detaining

authority has come to conclude that there are substantial grounds

established regarding involvement of the petitioner in serious anti-

national activities. He is a staunch facilitator of terrorist activities and

always engaged in devising methodologies to disrupt peace prevailing

in District Kathua. According to the detaining authority, since

petitioner’s actions are brazen and provocative which tend to create

an environment of insecurity and terror, it necessitates stringent

preventive measures against him.

05. Petitioner is aggrieved of the impugned order of detention inter alia

on the following grounds:

HCP No.145/2025 Page No.3

a. “That the order of detention of the detenue is totally illegal, arbitrary

and contrary to the provisions of law and facts of the case and

therefore, the same deserves to be quashed.

b. That the respondent no. 2 has exceeded his jurisdiction the detaining

authority has not applied his mind as there is no compelling reasons

and cogent material and details available before the detaining

authority on the basis of which respondent No.2 has made his

subjective satisfaction and passed the detention order, without any

valid reasons and facts as such there is complete non application of

mind. The provision of the Section 8 of the Public Safety Act which

is totally against the mandate of the law and as such, on this ground

alone the impugned order is liable to be quashed.

c. That the respondent no. 2 has not applied his mind properly the

respondent has detained the petitioner on the basis of the concocted

story with no material on record regarding the involvement of the

petitioner in disturbing public peace and order and tranquility and

communal harmony as alleged by the respondent in the detention

order, that right to liberty is most valuable right of the person and

such right cannot be deprived on the basis of mere assumptions by

the respondent State without having any proof on record on this

ground alone, the impugned order is liable to be quashed.

d. That the grounds of detention make mention of several alleged

activities of the detenu which are prejudicial to the maintenance of

Public Order, tranquility, peace and even though no supporting

documents regarding such alleged illegal activities of the detenu

have been provided to the detenu to facilitate the detenu to make an

effective representation against his detention. The detenu has two-

fold and independent rights viz. Right to be furnished all

the documents and subsequent right of representation against the

order of the detention. Both the rights of the detenu have been

violated and there is breach of the procedural safeguards as provided

under Article 22(5) of Constitution of India. The detenu has been,

thus, debarred from making an effective and purposeful

representation to the detaining authority and Government against

the order of detention, On this ground alone the order of detention

deserves to be quashed.

In the case of Syed Asiya Andrabi v. State & Ors, HCP

173/2017, decided on 30.08.2017, the detention order of petitioner

was set aside by this Hon'ble Court for the fact petitioner to alleged

activities. The relevant part of the judgment is noted below:

"On the basis of the law laid down above, what can be said is

that the grounds of detention are vague in almost all respects.

These do not state as to where the activities, attributed to the

detenue, took place. Each such accusation had to be

explained by reference to the relevant material, which, in

turn, had to be provided to the detenue so that a semblance

fairness could be attached to the order of detention. This has

not been done. This vagueness in the grounds of detention

impinges on the fundamental rights of the detenue guaranteed

under Article 22(5) of the Constitution of India and it cannot

stand.”

e. That the respondent no.2 and 3 have neither communicated to the

petitioner that he can make a representation before the detaining

HCP No.145/2025 Page No.4

authority and the respondents are under the legal obligation to

mention this fact to the petitioner so that he can make a

representation to the detaining authority and by not giving such

opportunity would constitute an infraction of the valuable

constitutional right guaranteed under Article 22(5) of the

Constitution of India and Section 13 of the J&K Public Safety Act,

1987. It is further submitted that the respondent is not only under

legal obligation to inform the petitioner about his legal right of

representation before the advisory board, but it is also the paramount

duty of the respondents to bring the detenue before the advisory

board so that he can make an effective representation before the

advisory board and also inform the detenue about his legal right

so that he can be represented by a counsel of his choice and by not

providing this facility and by not informing the petitioner about his

legal right to make an effective representation before the advisory

board is totally violative of the fundamental right of the petitioner

which has been enshrined in the Constitution of India and even on

the single ground the order of detention deserves to be quashed.

f. That the detenue is deprived of his right to make the effective

representation. On this count also the impugned order and grounds

are liable to be quashed and set-aside., Because the detenu has not

been furnished the material relied upon by the detaining authority.

The impugned order has been admittedly passed by the detaining

authority after perusing the dossier. However, the said material has

not been furnished to the detenue.

g. That it is incumbent upon the respondent no. 2 to approve the order

of detention from the respondent no. 1, which has been passed

against the petitioner within l2 days of making the order, and if the

order of detention has not approved by the respondent no. 1 within

l2 days, the detention of the detenue becomes illegal. In the present

case, the detention of the petitioner becomes illegal and unjustified

because neither the respondent no. 2 has got the order of detention

approved from the respondent no. 1 nor provided the copy of the

order which has been passed by the respondent no. 1 to petitioner,

so that the valuable right of the petitioner to make a representation

before the detaining authority has been curtailed, as such, the

detention of the petitioner become illegal and same deserves to be

set aside.

h. That it is pertinent to mention here that the respondent no. 2 and 3

are under the legal obligation to communicate the detention order, to

the petitioner in the language, which the petitioner understands. The

photocopy of the detention order which was supplied to the detenue,

it is obligatory and legal obligation and responsibility of the

respondents to communicate the detention order to the petitioner in a

language which the petitioner can understand well and also provide

the grounds of detention and the material in a translate script which

the petitioner can understand so that he can make an effective

representation before the detaining authority and the non-

communication and non-serving the copy of the detention order to

the petitioner in a language which the petitioner can understand,

would constitute a violation of the valuable constitutional right

under Article 22(5) of the Constitution of India, on this single

HCP No.145/2025 Page No.5

ground the detention order is bad in law

and as such, the same deserves to be set aside.

i. That the order of detention has been passed by the respondents on

imaginary grounds and in colorable exercise of power and the

respondent no. 2 has not applied his mind properly because ground

of detention also does not indicate any such activity of the petitioner

which fall within the parameters of Section 8 of the Jammu and

Kashmir Public Safety Act, 1987 and by imposing such

provision make the order of detention become illegal and the same

deserves to be set aside. It is further submitted that the respondent

no. 2 has imposed Section 8 of the J&K Public Safety Act, 1987,

against the petitioner which clearly shows that the detaining

authority has not applied his mind properly

and not hold subjective satisfaction before the passing of the order

of detention, which clearly reflects from the order of detention

passed by the respondent no.2 is simply imposing the Section 8 of

the J&K Public Safety Act without mentioning under which clause

the petitioner case falls which shows that the respondentno.2 has not

applied his mind properly and on this ground alone the detention

order is bad in the eyes of law and deserves to be set aside.

j. That the ground of detention mentioned in the order are replica of

the dossier with interplay of some words here and there which

exhibits that the respondent no. 2 has not applied his mind at the

time of the passing of the order, and as such, on this count also, the

order impugned order is bad andthe same deserves to be set aside.

k. That non-mentioning about the granting of bail in the detention

order is serious lapse which in turn gives rise to the inference that

there is non- application of mind on the part of detaining authority.

Hon'ble Apex Court in the case of "Anant Sakharam Raut v. State of

Maharashtra and another" reported in AIR 1987 SC 137:

"We hold that there was clear non application of mind on the part of

detaining authority about the fact that the petitioner was granted bail

when the order of detention was passed. In the result we set aside

the judgment of the Bombay High Court under appeal, quash the

order of detention and direct that the petitioner be released forth

with......”

l. That it is obligatory on the part of the detaining authorities and

advisory board to supply all the relevant documents i.e. dossier,

grounds of detention and other related documents to the petitioner

and non-providing the same renders the order of detention illegal

and bad in law. It is further submitted that in the

present petition the respondents had not provided order of detention

including all the copies of the detention order and other related

documents to the petitioner as a result of which it will violate the

valuable right of the petitioner guaranteed under Article 22(5) of the

Constitution and Section 13 of the J&K Public Safety Act, 1987 and

even on this sole ground the order of detention

deserves to be set aside.

m. That the detention of the petitioner has been ordered in sheer

disregard and derogation to the provisions of the Jammu and

Kashmir Public Safety Act, 1987 in as much as the respondent no. 2

while ordering detention of the petitioner under the said Act has not

complied the provisions of the said Act in its totality, which fact is

HCP No.145/2025 Page No.6

fully corroborated from the fact that the order of detention has not so

far been served upon the petitioner.

n. That the District Magistrate, Kathua i.e. respondent no. 2 has signed

the detention order of the petitioner on mere apprehension which

action of the respondent no.2 is totally baseless and the reason for

ordering the detention of the petitioner is a gospel truth only to clip

the freedom of citizen without any application of mind. The

respondent no.2 has failed to mention details

of any material put before him for his satisfaction. The respondent

no. 2 has in fact adopted an irresponsible approach while ordering

detention of the petitioner which renders the order impugned bad in

the eyes of law and the said detention order of the petitioner is liable

to be quashed.

o. That the order of detention impugned in this writ petition suffers

from fatal legal infirmities which are mandatory in nature and

violation of such provisions make the order of detention illegal and

bad in the eyes of law and is liable to be set aside. As the petitioner

has not been provided the relevant documents alongwith the grounds

of detention even after his detention up till now or any other

incriminating material on the basis of which the respondent

no. 2 has ordered the detention of the petitioner. This has caused

severe prejudice to the fundamental rights of the petitioner and the

petitioner could not make any representation to the concerned

authority.

p. That Hon'ble Division Bench of this Court in the case of Tariq

Ahmad vs. State of J&K and Ors.; 2017 (3) JKJ 684 has, while

dealing with a similar issue, held that non-communication of the fact

that the detenue can make a representation to the detaining authority,

till the detention order is not approved by the Government, would

constitute an infraction of a valuable constitutional right guaranteed

under Article 22(5) of the Constitution of

India as also of the right under Section 13 of the Jammu and

Kashmir Public Safety Act, 1978. It has been further held that such

non-communication would invalidate the order of detention. On this

ground alone irnpugned order is required to be quashed.

q. That the grounds of detention were supplied to the petitioner and the

order passed by the respondent no. 2 is short of satisfaction as

provided under Section 8 of Jammu and Kashmir Public Safety Act,

1987. This thing must appear in the face of the order and order must

disclose that the detaining authority has not assumed complete

satisfaction in respect of all matters as envisaged in Section 8 of the

Act. It is enough for the arrested person kept

under detention to say that he is under wrongful detention and

burden lies on the State or the Detaining authority to satisfy the

Hon'ble Court that the detention is not illegal. It is incumbent on the

State to satisfy the Hon'ble Court that the order of detention is legal

and in conformity with the provisions which are mandatory and

strictly in accordance with constitution safeguards provided in

Article 22(c) of the Constitution of India.

r. That viewed from any angle, the order impugned suffers from

serious legal infirmities and illegalities and therefore, the same is

liable to be quashed.

HCP No.145/2025 Page No.7

s. That vide impugned order, the Detaining Authority has not

communicated to the detenue his right to represent against the order,

not to speak of the time limit, in which, he could make a

representation to it, till approval of the detention order by the

Government.

t. That Hon'ble the Supreme Court of India in catena of judgments,

repeatedly emphasized that maintenance of Public Order is not to be

abused or ought to serve as a ruse for overreaching the ordinarily

criminal procedure which is meant to deal with the cases of

commission of offences relatable to law and order scenario.

u. That in case of "Ramesh Yadav Vs. District Magistrate, ETAH and

others" reported in (1985) 4 Supreme Court 232Hon'ble the

Supreme Court of India has envisaged to resist temptation to prefer

and substitute easy expedience of a preventive detention to more

cumbersome punitive detention mode of dealing with the persons.

Respondents with a stroke of pen completely eroded

the substantive laws and stated that the Criminal Justice system of

this country failed to deter petitioner which reflects complete non

application of mind by the respondents.

v. The detention of the detenue has been ordered on the basis of

preventive action U/S 128 BNSS only. Investigation is part and

parcel of criminal justice system and respondents are shying away

from doing their duty and haphazardly using preventive detention

laws.

w. That the detenue was not informed that within what time frame he

can make a representation against his detention order to the

detaining authority or to the respondent no. I &. 2, which is in total

violation of the rights of the detenue as guaranteed under Article 22

of the constitution. On this ground also, the order passed by the

Respondent No.2 is bad in law and deserves to be quashed.

x. The detention of the detenue has been ordered on the basis of one

FIR, which has been lodged in the year2019 only and which is

registered on 28-05-2019, the case had no proximity of time with the

detention order. Live and proximate link between the past conduct

of the detenue and the imperative need to detain have to be

harmonized to rely upon the alleged illegal activities

of the detenue. Old and stale incidents shall be of no use as has been

held by Hon'ble Apex Court in "Sama Aruna Vs State of Telangana

& Anr." reported as (2018) 12 SCC 150.

y. That the view taken by the Hon'ble Supreme Court in "Rushikesh

Tanaji Bhoite vs. State of Maharashtra & Ors." Reported in (2lll2) 2

SCC 72 wherein the Apex Court observed that:

"9. In a case where detenue is released on bail and is enjoying

his freedom under the order of the court at the time of passing

the order of detention, then such order of bail, in our opinion,

must be placed before the detaining authority to enable him to

reach at the proper satisfaction." "

10. We cannot attempt to assess in what manner and to what

extent consideration of the order granting bail to the detenue

would have effected the satisfaction of the detaining authority

but suffice it to say that non-placing and non- consideration of

HCP No.145/2025 Page No.8

the material as vital as the bail order has vitiated the subjective

decision of the detaining authority.”

06. It is contention of the petitioner that impugned order is contrary to the

spirit of Article 22(5) of Constitution of India and Section 13 PSA.

According to the petitioner, the detaining authority on the basis of

dossier submitted by the sponsoring authority has passed the

impugned order, without application of mind and without evaluating

the allegations against him.

07. It is also contended that as per the grounds of detention, preventive

action against the petitioner were initiated under Section 126 BNSS,

however, outcome of these proceedings were never made known to

him. It is next contended that in the grounds of detention, a reference

has been made to DDR No.05 dated 14.04.2025 of P/S Malhar,

whereas copy of the said DDR was never supplied to the petitioner.

According to the petitioner, the DDR entry is a unique model adopted

by the respondents-detaining authority to make a fabricated story to

project him as a hard core criminal.

08. Petitioner has invoked writ jurisdiction of this Court for the

quashment of impugned order and his consequent release from the

detention.

09. The plea has been opposed on the other side by the respondents,

primarily on the ground that no fundamental, legal or statutory right

of the petitioner is found to have been violated.

10. It is contention of the respondents that impugned order came to be

passed by the detaining authority after due consideration of the

HCP No.145/2025 Page No.9

dossier submitted by SSP, Kathua because petitioner was found

continuously and repeatedly involved in anti-national activities

thereby posing a persistent threat to the security of the state.

11. According to the respondents, the material relied by the detaining

authority including the FIR would show a continuous pattern of

conduct on the part of the petitioner to threaten law and order.

12. It is contention of the respondents that total 39 leaves including

grounds of detention, detention warrant and all relevant documents

were not only supplied to the petitioner but duly read over and

explained to him in the language he fully understood and his

signatures as a token of receipt were obtained by the executing

officer. The petitioner and his father namely Mohd. Butt were

informed about detention of the petitioner and the grounds on which

he came to be detained. He was afforded fair opportunity to make

representation against the impugned order to the Government within

the stipulated time period, if he so desires. In response, the petitioner

represented against his detention before the competent authority and

the Home Department vide communication No. Home/PB-

V/328/2025/(7650718) dated 19.09.2025 intimated the detaining

authority that after considering the representation, same was found to

be without merit. This communication was endorsed to the

Superintendent, Central Jail, Kot Bhalwal, Jammu, who vide his letter

dated 13.08.2025 has informed the detenue regarding disposal of the

representation.

HCP No.145/2025 Page No.10

13. It is contention of the respondents that since there was every

likelihood of the petitioner repeating anti-national activities,

therefore, his detention was indispensably required to ensure security

of the state and maintenance of peace in the region. Respondents have

prayed for dismissal of the petition.

14. Having heard the rival contentions, I have gone through the detention

record.

15. The petitioner, at the foremost is affront to his detention on the

ground that the detaining authority embarked upon to pass the

impugned order of detention without waiting for the outcome of the

preventive measures initiated against him on 21.09.2024.

16. The Magistrate under Section 129 BNSS has been empowered to

require security for good behaviour from repeat offenders such a

robbers, thieves or those involved in kidnapping, extortion, forgery or

protecting thieves or breaching public peace to execute a bond for up

to 03 years, to ensure safety of the community. The target individuals

also include those habitually commit or abet offences related to Drugs

and Cosmetics Act, Foreigners Act, Customs Act and laws relating to

hoarding, profiteering or corruption. The provision also covers the

persons deemed so “desperate and dangerous” that there being at

large without security, is hazardous to the community.

17. Pertinently, if immediate measures pending inquiry are necessary

Magistrate is also vested with the power to require an individual to

execute an interim bond under Sub-Section 3 of Section 135.

Ordinarily, the detention or imprisonment for breach, follows the non-

HCP No.145/2025 Page No.11

compliance of final bond executed under Section 136 BNSS and

generally it occurs only after a final order is passed following a

complete inquiry.

18. It is manifest from the above that preventive measures envisaged

under Chapter IX of BNSS is a regulatory process, under the criminal

justice framework and designed to prevent recurring criminal conduct

of an individual. The provision has been inserted with an avowed

object to protect public order by requiring the individuals to show

cause as to why they should not execute a bond for good behavior.

19. On the other hand, preventive detention under the Public Safety Act,

is a separate executive measure, independent of preventive measures

under BNSS. The fact that an individual is facing security

proceedings for good behavior under BNSS does not legally debar the

executive from invoking PSA. True it is that both the measures can

co-exist, but there is a caveat.

20. When a person is facing preventive measures for good behavior

within a framework of chapter IX BNSS, detaining authority in such

circumstances must demonstrate the “compelling reasons” and an

independent application of mind that why the security proceedings for

good behavior initiated against him were proved insufficient to

prevent him from engaging in an activity prejudicial to the public

order. Therefore, though preventive detention under PSA can be

legally invoked by the executive during the continuation of

proceedings under Chapter IX BNSS, but it must meet the strict legal

standards and reflect an independent application of mind.

HCP No.145/2025 Page No.12

21. In the present case, neither the recommending authority-SSP, Kathua

nor the detaining authority-respondent No. 2 has demonstrated any

compelling reason as to why the security proceedings initiated against

the petitioner under Section 126 BNSS were found insufficient.

22. There cannot be two opinions to the settled position of law that

security of the state and maintenance of public peace, tranquility and

order is absolute prerogative of the executive. Subjective satisfaction

of the detaining authority to detain a person when he refuses to desist

from his past activities is not subject to objective assessment of the

Court. The High Court in exercise of its writ jurisdiction has no

power to substitute its satisfaction with one of the detaining authority

and decide whether in the circumstances of a case an individual

should be detained or not. However, personal liberty of a citizen

cannot be infringed on dogmatic assertions of the executive.

23. The Administration cannot be allowed to trample over the liberty of

its citizens in an arbitrary and perfunctory fashion. The conduct of the

detaining authority exercising such a vast jurisdiction is required to be

reasonable and in consonance with the concept of justice and fairness.

It is the rule of a law which should dictate the detaining authorities to

act in a manner which is lawful, reasonable and fair and in tune with

the concept of fundamental right of life and liberty enshrined in

Article 21 of Constitution of India.

24. Reverting to the case, the grounds of detention, after a passing

reference to the Magisterial proceedings initiated against the

petitioner, under Section 126 BNSS are ominously silent about

HCP No.145/2025 Page No.13

further details. There is nothing to indicate further that whether

petitioner was served upon a show cause notice by the Executive

Magistrate or whether he was required to execute an interim bond as

an immediate measure under Section 135(3) BNSS and if he executed

any such bond whether he violated the conditions thereof. In nutshell,

neither the detaining authority has recorded any compelling reason

prompting him to invoke PSA against the petitioner nor reflected an

independent application of mind as to why preventive measures

proved insufficient to prevent him from engaging in activities

prejudicial to the security of the state. Preventive detention under

PSA cannot be ordered unless there is emergency based justification

which ordinary law of the land cannot address.

25. In addition to the preventive measures, the impugned order traces its

origin to the solitary FIR No. 01 of 2019 whereby it was alleged that a

source information was received that two unknown persons were

found roaming in suspicious conditions near Army Camp Ratnuchak

Jammu and were taking photos, making videos of important roads etc.

with the help of their mobile phones and sending the same through

Whatsapp to the head of terrorists groups sitting across the border at

Pakistan. During investigation, they disclosed their names as Mushtaq

Ahmed and Nadim Akhter. They further disclosed that they were

constantly in touch with Mohd. Amin Bhat @ Abu @ Haroon and

they were taking the photographs/videos of Armed establishment on

the direction of Pak based handlers. Their mobile phones came to be

seized during further investigation. Both of them also disclosed that

HCP No.145/2025 Page No.14

Abdul Karim, Saddam Hussain (the petitioner), Mohd. Saleem and

Safdar Ali were also involved. The investigation of this FIR

culminated in the presentation of charge sheet.

26. Pertinently, petitioner came to be enlarged on bail in the said FIR by

learned Principal Sessions Judge, Jammu on 13.06.2023. A perusal of

the said bail order reveals that out of 18 witnesses cited in the charge

sheet, PW Gulam Mohi Din, PW Sanjay Kumar, PW Charanjeet

Singh, PW Rajinder Singh and PW Ajay Kumar came to be

examined during the trial and they have not whispered a word in their

statements to show that petitioner was caught red handed while

clicking photographs of army installations or any other security assets

of the State. The impugned order of detention and grounds of

detention are not only silent about grant of bail to the detenue in the

solitary FIR, but also the grounds on which he came to be released on

bail which indicates total non-application of mind by the detaining

authority.

27. Another ground urged by learned counsel for the petitioner is

inordinate delay in the disposal of representation of the petitioner.

28. It is by far a crystallized position of law now that in a case of

preventive detention government is not only obliged to afford the

detenue an opportunity to make an effective representation but to

consider it without unreasonable delay because it involves liberty of a

citizen guaranteed under Article 19 of the Constitution of India. It is

trite in law that unreasonable delay in the disposal of representation

HCP No.145/2025 Page No.15

submitted by the deteue amounts to infringement of Article 22(5) of

the Constitution.

29. Hon’ble Supreme Court in K.M. Abdulla Kunhi and Anr. V. Union

of India & Ors.; AIR 1991 SC 574 has held that though there can be

no hard and fast rule regarding the timeline within which a

representation is required to be considered by the Government and

there is no limitation provided under the Constitution or PSA within

which a representation is required to be considered and decided by the

Government, however, it is manifest from the words “as soon as may

be”, occurring in Clause (5) of Article 22 of the Constitution that

unexplained delay in disposal of representation would amount to

infringement of Article 22(5) of the Constitution of India.

Relevant excerpt of the judgment for the ease of reference is extracted

below:

“……5(a) The representation relates to the liberty of

the individual, the highly cherished right enshrined in

Article 21 of our Constitution. Clause (5) of Article 22

therefore, casts a legal obligation on the Government

to consider the representation as early as possible. It is

a constitutional mandate commanding the concerned

authority to whom the detenue submits his

presentation to consider the representation and dispose

of the same as expeditiously as possible.

5(b) The words “as soon as may be” occurring in

clause (5) of Article 22 reflect the concern of the

Framers that the presentation should be expeditiously

considered and disposed of with a sense of urgency

without an avoidable delay. However, there can be no

hard and fast rule in this regard. It depends upon the

fact and circumstances of each case. There is no period

prescribed either under the Constitution or under the

concerned detention law, within which the

representation should be dealt with the requirement

however, is that there should not be supine

indifference slackness or callous attitude in considering

the representation. Any unexplained delay in the

disposal of the representation would be a breach of the

HCP No.145/2025 Page No.16

constitutional imperative and it would render the

continued detention impermissible and illegal…..”

30. It is evident from the exposition of law by Hon’ble Supreme Court in K.

M. Abdulla Kunhi (Supra) that unexplained delay in disposal of a

representation amounts to infringement of Article 22(5) of Constitution

of India. The detaining authority is not only obliged to consider the

representation of the detenue, as soon as possible and practicable but

also communicate the decision without further waste of time.

31. Consideration of representation on the part of Home and/or detaining

authority is not an empty formality. The constitutional imperative under

Article 22(5) imposes a dual obligation on the authority propounding the

order of preventive detention; viz. (i) he must afford the detenue earliest

opportunity of making a representation against his detention; and (ii) he

must, as soon as possible, after detention order is passed, communicate

the detenue the grounds on which order of detention has been made.

32. A perusal of the record reveals that petitioner preferred the

representation dated 24.07.2025 addressed to Additional Chief

Secretary, District Magistrate, Kathua and it was received by respondent

No.2 to 29.07.2025. This representation came to be disposed of on

19.09.2025 but communicated to the petitioner on 11.10.2025 i.e. after

an inordinate delay of 50 days from the date of presentation of the

representation. Consideration of representation and consequent

communication of the decision taken by the concerned authority cannot

be allowed to be pigeon holed for indefinite period of time.

33. As stated, the respondents in the present case have considered and

disposed of the representation preferred by the petitioner after an

HCP No.145/2025 Page No.17

inordinate and inexplicable delay of 50 days which amounts to

infringement of Articles 14 and 21 of Constitution.

34. Viewed from any angle, the impugned order of detention does not

sustain in the eyes of law. Hence, present petition is allowed and

petitioner is immediately directed to be released from the detention,

provided he is not involved in any other case.

35. Detention record after perusal is returned to learned GA.

36. Disposed of along with connected CMs.

(Rajesh Sekhri)

Judge

Jammu

21.05.2026

Eva

Whether the judgment is speaking or not? Yes

Whether the judgment is reportable or not? Yes