GOWHAR MAQBOOL RATHER vs UNION TERRITORY THROUGH DISTRICT MAGISTRATE BARAMULLA

IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 28.10.2026
Pronounced on: 06.11.2026
Uploaded on: 06 .11.2026
Whether the operative part
or full judgment is
pronounced: Full
HCP No.250/2025
GOWHAR MAQBOOL RATHER
...PETITIONER(S)/APPELLANT(S)
Through: - Mr. Hussain Rashid, Advocate.
Vs.
UT OF J&K & ORS.
…RESPONDENT(S)
Through: - Mr. Hakeem Aman Ali, Dy. AG.
CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1) The petition, through the medium of this petition, has
challenged order of detention bearing No.23/DMB/PSA
/2025 dated 25.06.2025, issued by the District Magistrate,
Baramulla, in terms of Section 8 of the Jammu and
Kashmir Public Safety Act. 1978 (for short, “the Act”).
2) The petitioner has assailed the order of detention on
the following grounds:-
(i) That there is complete non-application of mind on
the part of the detaining authority, as the
HCP No.250/2025 Page 1 of 8

impugned order has been passed on the basis of
the same material pursuant to which the earlier
th
order of detention dated 17 of September 2018
was issued against the petitioner, but was quashed
th
by this Court in terms of order dated 26 of
February 2019.
(ii)
That the order of detention has been issued on the
recommendations of the Senior Superintendent of
Police, Sopore, and the grounds of detention are the
verbatim reproduction of the dossier, with the only
change that instead of word ‘subject’, ‘you’ has
been employed by the detaining authority in the
grounds of detention.
(iii) That there is no live link and proximate link
between the alleged illegal activities attributed to
the petitioner and the order of detention, as illegal
acts which have been attributed to the petitioner
are of year 2008 and 2018 and these activities, as
such, cannot be relied upon for detaining the
petitioner.
HCP No.250/2025 Page 2 of 8

(iv) That the wife of the detenue had submitted a
representation before the detaining authority, but
the same was not considered by the respondents.
3) The respondents in turn have filed the response
stating therein that, upon perusal of the material
submitted by the Senior Superintendent of Police, Sopore,
the detaining authority carefully examined the same and,
upon deriving subjective satisfaction that the detention of
the petitioner was imperative, issued order of detention
th
dated 25 of June 2025. The respondents have further
furnished the details of the activities allegedly carried out
by the petitioner in the years 2008 and 2018, in connection
with the registration of two FIRs, i.e., FIR No. 263 of 2008
and FIR No. 244/2018. It has also been stated that the
petitioner was discreetly using encrypted applications and
VPNs to maintain contact with over-ground workers
(OGWs) affiliated with proscribed terrorist outfits. Following
the recent terrorist attack in Baisaran Valley, Pahalgam,
there was a strong apprehension that the petitioner may
again become active, thereby posing a more serious threat
to the Union Territory of Jammu and Kashmir. It is further
stated that the warrant of detention was executed by the
th
police on 27 of June 2025, whereafter the petitioner was
lodged in Central Jail, Kot Bhalwal. The petitioner was
HCP No.250/2025 Page 3 of 8

th
informed, vide communication dated 27 of June 2025, of
the grounds of detention and his right to make a
representation to the detaining authority as well as to the
Government. The order of detention was subsequently
st
confirmed by the Government in terms of order dated 21
of July 2025. The respondents have also stated that the
representation submitted by the wife of the petitioner was
considered and rejected as being devoid of merit, and the
petitioner was duly informed of the same.
4) Heard and perused the record.
5) The first ground raised by the petitioner is that the
grounds of detention are the verbatim reproduction of the
dossier, which clearly reflects the non-application of mind
on the part of the detaining authority. This Court has
perused the grounds of detention and also the dossier, and
finds that except for cosmetic changes in the form of
replacement of word "subject" by "you", there is no material
and substantial difference between the two, and as such, it
is indicative of the fact that the detaining authority has
simply reproduced the dossier while passing the order of
detention and has not applied its mind independently. This
exhibits non-application of mind on the part of detaining
authority. While formulating the grounds of detention, the
HCP No.250/2025 Page 4 of 8

Detaining Authority has to independently apply its own
mind and cannot simply reiterate whatever is written in the
police dossier. The similarity of contents of grounds of
detention and police dossier in the instant case clearly
exhibits the mechanical functioning of the detaining
authority, thereby making the impugned order of detention
unsustainable in law. Reliance is placed on the judgment of
the Supreme Court in the case of Jai Singh and ors. vs.
State of J&K ( AIR 1985 SC 764 ).
6) Next, it was contended that the representation
submitted against the order of detention was not decided
by the respondents. The record of detention reveals that the
representation dated 08.07.2025 was forwarded by the
District Magistrate to the Home Department in terms of
communication dated 23.07.2025, and in terms of
communication dated 29.07.2025, the respondent Nos. 1
sought comments from the Additional DGP, CID, J&K, and
thereafter, in terms of order dated 04.09.2025, the
representation submitted against the order of detention
was rejected, and in terms of communication dated
05.09.2025, the petitioner was informed about the rejection
of the representation. There is a delay of nearly two months
in deciding the representation, which has not been
HCP No.250/2025 Page 5 of 8

explained by the respondents. The question that arises for
determination is as to whether delayed consideration of
representation satisfies the requirement of law.
7) The aforesaid question has been answered by the
Hon’ble Supreme Court of India in the case of Sarabjeet
Singh Mokha vs. District Magistrate, Jabalpur and
others, ( 2021) 20 SCC 98 . It would be apt to refer to
observations made by the Supreme Court in para 47 of the
judgment, which are reproduced as under:-
“47. By delaying its decision on the
representation, the State Government
deprived the detenu of the valuable right
which emanates from the provisions
of Section 8(1) of having the representation
being considered expeditiously. As we have
noted earlier, the communication of the
grounds of detention to the detenu “as soon
as may be” and the affording to the detenu of
the earliest opportunity of making a
representation against the order of detention
to the appropriate government are intended to
ensure that the representation of the detenu
is considered by the appropriate government
with a sense of immediacy. The State
Government failed to do so. The making of a
reference to the Advisory Board could not
have furnished any justification for the State
Government not to deal with the
representation independently at the earliest.
The delay by the State Government in
disposing of the representation and by the
Central and State Governments in
communicating such rejection, strikes at the
heart of the procedural rights and guarantees
granted to the detenu. It is necessary to
understand that the law provides for such
procedural safeguards to balance the wide
powers granted to the executive under the
NSA. The State Government cannot expect
HCP No.250/2025 Page 6 of 8

this Court to uphold its powers of subjective
satisfaction to detain a person, while violating
the procedural guarantees of the detenu that
are fundamental to the laws of preventive
detention enshrined in the Constitution.”
8) From the aforesaid law laid down by the Hon’ble Apex
Court, it is manifest that delaying of decision on the
representation of the detenue amounts to an infringement
of a valuable right, which is available to a detenue in terms
of the provisions contained in Section 13 of the Jammu &
Kashmir Public Safety Act. Failure to decide the
representation of a detenue within a reasonable time in an
expeditious manner strikes at the valuable right of a
detenue emanating from the provisions of Section 13 of the
Jammu & Kashmir Public Safety Act.
9) In the present case, there is no explanation from the
side of the respondents with regard to the delay of about
two months in deciding the representation of the petitioner.
This unexplained slackness on the part of respondents to
take a decision on the representation of the petitioner
renders the impugned order of detention illegal.
10) For the afore-stated reasons, the petition is allowed
and the impugned detention bearing No.23/DMB/PSA
/2025 dated 25.06.2025, issued by the District Magistrate,
Baramulla, is quashed. The respondents are directed to
HCP No.250/2025 Page 7 of 8

release the petitioner from the preventive custody
forthwith, provided he is not required in connection with
any other case.
11) The detention record be returned to learned counsel
for the respondents.
(Rajnesh Oswal)
Judge
Srinagar,
06.11.2026
“Bhat Altaf-Secretary”
Whether the judgment is reportable: NO
HCP No.250/2025 Page 8 of 8


MADAN LAL VERMA
2026.11.06 16:16
I attest to the accuracy and
integrity of this document