SHOWKAT AHMAD BHAT vs UNION TERRITORY OF J AND K AND ORS. (HOME)
- Court
- Jammu and Kashmir High Court
1
P a g e |
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No.224/2025
Reserved on: 03.09.2026
Pronounced on: 11.09.2026
Uploaded on: 11.09.2026
Operative part or full judgment: Full
Showkat Ahmad Bhat
S/O Ghulam Nabi Bhat
R/O Shartgund Bala,
Tehsil Qalamabad,
District Kupwara.
…Petitioner(s)
Through: Adv. Imtiyaz Sofi.
Vs.
1. Union Territory of J&K
through Secretary to Govt.
Home Department,
Civil Sectt. Srinagar.
2. District Magistrate,
Kupwara.
3. Sr. Superintendent of Police,
Handwara.
…Respondent(s)
Through: GA Faheem Nisar Shah.
CORAM:
HON’BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
JUDGMENT
1. The instant petition has been filed by the petitioner
seeking quashing of detention Order No. 12-DMK/PSA of
2025 dated 30.04.2025 passed by respondent No.2-
2
P a g e |
District Magistrate, Kupwara, whereby the petitioner has
been placed under preventive detention with a view to
prevent him from acting in any manner prejudicial to the
security of the UT of J&K .
2. The petitioner has assailed the detention order primarily
on the ground that the constitutional safeguards
guaranteed under Article 22(5) of the Constitution of India
have not been complied with and that the material relied
upon by the Detaining Authority was not furnished to him
in its entirety.
3. Learned counsel for the petitioner has contended that the
grounds of detention themselves disclose reliance upon
two communications received from the police, dated
27.04.2025 and 29.04.2025 . However, while the
communication dated 27.04.2025 was furnished to the
detenue, the communication dated 29.04.2025 was
admittedly not received by him; that the communication
dated 29.04.2025 constituted relied-upon material and,
therefore, its non-supply deprived the detenue of an
effective opportunity to understand and controvert the
allegations forming the basis of the detention order.
4. Learned counsel for the petitioner further contended that
the grounds of detention make reference to an FIR No.
75/2018 under Sections 307 RPC, 7/27 IA Act, 19, 29
UA(P) Act registered at Police Station Qalamabad and refer
generally to the alleged recent activities of the detenue, but
3
P a g e |
fail to furnish adequate particulars of the alleged activities
which, according to the Detaining Authority, were
prejudicial to the security of the UT of J&K.
5. It is also submitted that the representation made by the
detenue was in English and that the manner in which the
representation was dealt with further demonstrates that
the detenue was not afforded a meaningful and effective
opportunity to challenge his detention.
6. Learned counsel appearing for the respondents, ex-
adverso, while reiterating the assertions made in the
counter affidavit, opposed the petition and submitted that
the detention order has been passed after the Detaining
Authority, upon consideration of the material placed before
it, arrived at the requisite subjective satisfaction that the
detention of the petitioner was necessary to prevent him
from acting in a manner prejudicial to the security of the
UT of J&K; that the relevant documents were supplied to
the detenue and that no prejudice has been caused to him.
It is further submitted that the detention order has been
passed strictly in accordance with the provisions of law
and that the petition deserves dismissal.
7. Heard and considered the rival submissions and also
perused the detention record.
8. Perusal of grounds of detention would show that the
petitioner was involved in a criminal case registered vide
FIR No.75/2018 for the commission of offences punishable
4
P a g e |
under Sections 307 RPC, 7/27 IA Act and 19, 29 of UA(P)
Act at Police Station Qalamabad but was later on enlarged
on bail in the said case by the competent court of law; that
the petitioner was having strong association with the
banned terrorist organization ‘HM’; that the petitioner was
a bad character and relevant entries about his behavior
were recorded in the concerned police station from time to
time; that the activities of the petitioner, if not curbed at
this moment by invoking provisions of J&K Public Safety
Act, 1978, the same will prove detrimental to the security
of the UT of J&K; that the respondents have reached to the
conclusion that there exists cogent grounds to take the
petitioner into preventive custody under Section-8 of the
J&K Public Safety Act, 1978, as the petitioner poses a
serious threat to the security of the UT of J&K.
9. There can be no quarrel with the settled proposition that
preventive detention is an exceptional measure which
permits deprivation of personal liberty without a criminal
trial. The power, therefore, has to be exercised strictly in
accordance with the constitutional and statutory
safeguards governing such detention. The Court is equally
conscious that it does not sit in appeal over the subjective
satisfaction of the Detaining Authority. The adequacy or
sufficiency of the material on the basis of which such
satisfaction has been arrived at, is ordinarily not to be
examined by the Court as if it were exercising appellate
5
P a g e |
jurisdiction. However, the subjective satisfaction of the
Detaining Authority is not immune from judicial scrutiny
where the constitutional safeguards accompanying
preventive detention have not been complied with.
10. Article 22(5) mandates that the detenue shall be
communicated the grounds on which the order of
detention has been made and shall be afforded the earliest
opportunity of making a representation against the order.
The right to make a representation necessarily means a
real and effective right of representation. A detenue cannot
effectively exercise that right unless the material relied
upon for making the detention order is supplied to him.
11. The most significant issue arising for consideration is
whether the detenue was supplied the entire material
relied upon by the Detaining Authority. The grounds of
detention admittedly refer to two police communications,
one dated 27.04.2025 and the other dated 29.04.2025 .
The record, however, does not establish that both
communications were furnished to the detenue. On the
contrary, the material placed before the Court indicates
that while the communication dated 27.04.2025 was
received by the detenue, but the communication dated
29.04.2025 was not received by him .
12. This omission cannot be treated as a mere technical
or inconsequential irregularity. The communication dated
28.04.2025 finds specific mention in the grounds of
6
P a g e |
detention and, therefore, forms part of the material which
was before the Detaining Authority and which had a
bearing upon its subjective satisfaction. Once a document
is relied upon as a basis for arriving at the subjective
satisfaction, its non-supply to the detenue assumes
constitutional significance. The detenue cannot be
expected to effectively controvert material, the contents of
which have not been made available to him.
13. The Supreme Court in Jaseela Shaji v. Union of
India, reported as 2024 INSC 683 , has reiterated that
documents relied upon by the Detaining Authority must be
furnished to the detenue, since non-supply of such
material may deprive the detenue of his constitutional
right to make an effective representation under Article
22(5). The Court held as under:-
“…There can be no doubt that it is not
necessary to furnish copies of each and
every document to which a casual or
passing reference may be made in the
narration of facts and which are not relied
upon by the Detaining Authority in making
the order of detention. However, failure to
furnish copies of such
document/documents as is/are relied on by
the Detaining Authority which would
deprive the detenue to make an effective
representation would certainly amount to
violation of the fundamental right
7
P a g e |
guaranteed under Article 22(5) of
the Constitution of India…”
14. The principle is not only elementary but
fundamental. The detenue must know the material which
has persuaded the Detaining Authority to deprive him of
his liberty, so that he may meaningfully challenge it. It
would also be inappropriate to accept the contention that
the petitioner must demonstrate some additional or
independent prejudice caused to him by non-supply of the
communication dated 29.04.2025 . Where a document is
relied upon by the Detaining Authority and is not supplied
to the detenue, the constitutional right to make an
effective representation itself stands impaired if the
document was necessary for that purpose.
15. The issue is not whether the Court considers the
omitted document important in retrospect. The relevant
question is whether the detenue was placed in possession
of the material which the Detaining Authority itself
considered relevant for arriving at the satisfaction that his
detention was necessary. In the present case, the answer
is in negative.
16. There is another aspect which reinforces the
conclusion reached by this Court. The grounds of
detention make reference to an earlier FIR No. 75/2018 ,
and thereafter refer to the alleged recent activities of the
detenue. However, the grounds, as placed on record, do
8
P a g e |
not furnish sufficient particulars of such alleged recent
activities so as to enable the detenue to understand with
reasonable clarity what particular conduct is attributed to
him and in what manner such conduct was considered
prejudicial to the security of the UT of J&K.
17. Preventive detention is not intended to punish a
person for an act already committed. Past conduct may
certainly constitute relevant material for preventive
detention, but there must be some material demonstrating
its continuing relevance to the apprehension of future
prejudicial conduct. In the present case, the reference to
an FIR of the year 2018 being stale without any live and
proximate link, coupled with general assertions regarding
recent activities without adequate particulars and without
supplying the entirety of the relied-upon material, does not
provide the detenue with a meaningful opportunity to meet
the allegations. This Court is not holding that an old FIR
can never constitute relevant material for preventive
detention. The question is one of live link and continuing
relevance . That link must emerge from the grounds and
the material supplied to the detenue.
18. This Court is mindful and concious that the object of
the impugned detention is stated to be prevention of acts
prejudicial to the security of the UT of J&K, which is
undoubtedly a matter of grave constitutional and public
importance. That consideration, however, cannot dispense
9
P a g e |
with the procedural safeguards guaranteed to a person
subjected to preventive detention. Indeed, the more serious
the consequence of the detention, the greater is the need
for strict adherence to the constitutional safeguards. The
Court cannot sustain deprivation of personal liberty merely
because the allegation relates to the security of the State, if
the statutory and constitutional procedure prescribed for
such deprivation has not been followed.
19. The Court's concern in the present case is, therefore,
not with the gravity of the object sought to be achieved by
the detention, but with the legality of the procedure by
which the petitioner's liberty has been curtailed.
20. The record further shows that the detenue submitted
a representation against his detention. The fact that the
detenue could make a representation, however, does not
by itself establish compliance with Article 22(5). The
constitutional guarantee is of an effective opportunity to
represent against the detention. That opportunity must
necessarily be considered in the context of the material
actually supplied to the detenue. Where one of the relied-
upon communications was not furnished to him, his
representation necessarily proceeded without knowledge of
the complete material which had contributed to the
Detaining Authority's subjective satisfaction. Thus, even
assuming that the representation was duly received and
10
P a g e |
considered, the defect arising from non-supply of relied-
upon material remains fundamental.
21. On an overall consideration of the matter, this Court
is satisfied that the impugned detention order cannot be
sustained. The communication dated 29.04.2025 , which
was specifically relied upon by the Detaining Authority,
was not received/supplied to the detenue. The omission
assumes constitutional significance because the detenue
was thereby deprived of an opportunity to examine and
effectively controvert material which had a bearing upon
the subjective satisfaction resulting in his detention. This
defect is compounded by the absence of sufficiently
specific particulars regarding the alleged recent activities
and the reliance, without a clearly demonstrated live link,
upon an old criminal case.
22. For the foregoing reasons, the petition is allowed .
The detention Order No. 12-DMK/PSA of 2025 dated
30.04.2025 passed by respondent No.2-District
Magistrate, Kupwara, whereby the petitioner/detenue has
been detained with a view to prevent him from acting in
any manner prejudicial to the security of the UT of J&K, is
hereby, quashed . The respondents are directed to release
the petitioner/detenue forthwith, if his custody is not
required in connection with any other case or lawful
proceedings.
11
P a g e |
23. Scanned detention record, as produced by learned
counsel for the respondents, is directed to be sent back
through him.
24. Disposed of, accordingly.
(M. A. CHOWDHARY)
JUDGE
Srinagar
11.09.2026
Muzammil. Q
Whether the order is reportable: Yes / No