BASHARAT MEHMOOD TH HIS MOTHER GULNAZ PARVEEN vs UT OF J AND K TH ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME DEPARTMENT, JAMMU AND OTHERS

HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT JAMMU
…
HCP No. 08/2026


Reserved on: 13.08.2026
Pronounced on: 11.09.2026
Uploaded on: 11.09.2026

Whether the operative part or full
Judgment is pronounced: Full

Basharat Mehmood, age 26
years S/o Mohd. Kabir, through
his mother, Gulnaz Parveen, age
43 years W/o Mohd Kabir,
R/o Nerojal, Tehsil
Thannamandi District Rajouri.

…….Petitioner(s)


Through: Mr. C. S. Azad, Advocate

Vs.

1. The Union Territory of
Jammu and Kashmir through
Additional Chief Secretary,
Home Department, Civil
Secretariat, Jammu.

2. Director General of Prisons,
J&K.

3. District Magistrate, Rajouri.

4. Senior Superintendent of
Police, Rajouri.

5. Jail Superintendent, Kote
Bhalwal Jail, Jammu.
…..Respondent(s)
Through: Mr. Dewakar Sharma, Dy. AG


CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

JUDGMENT


1. Through the medium of the present petition filed through his mother, the
petitioner has assailed the Order No. DMR/PSA/01 of 2026 dated

01.01.2026 (hereinafter referred to as "the detention order") issued by
respondent No. 3, District Magistrate, Rajouri (hereinafter referred to as
"the detaining authority"), whereby the petitioner has been detained
under Section 8 of the J&K Public Safety Act, 1978 to prevent him from
acting in any manner which is prejudicial to the maintenance of public
order.
2. The detention order has been assailed, inter alia , on the following
grounds:
(i) That the representation submitted by the petitioner under Article
22(5) of the Constitution of India read with Section 13(1) of the
Act was not considered and decided with promptitude required in
law.
(ii) That the detaining authority failed to demonstrate any compelling
circumstances necessitating preventive detention of the petitioner,
when the ordinary law of the land was available.
(iii) That the grounds of detention are vague, flimsy and redundant.
(iv) That the grounds of detention are verbatim reproduction of the
dossier furnished by the sponsoring authority, thereby reflecting
non-application of independent mind.
3. Counter affidavit has been filed by respondent No. 3, wherein it has been
stated that the impugned detention order has been passed on the basis of
relevant material, including multiple FIRs and police records, which
allegedly disclose that the petitioner is a habitual offender and poses a
threat to the maintenance of public order. It is further stated that the
petitioner was supplied with the grounds of detention along with the
HCP No. 8/2026 Page 2 of 6

relevant material and was afforded an opportunity to make an effective
representation. According to the respondents, the detaining authority,
upon perusal of the dossier and the material placed before it, arrived at
the requisite subjective satisfaction that the ordinary criminal law is
insufficient to curb the activities of the petitioner and that all
constitutional and statutory safeguards were duly complied with.
Respondents have mentioned in details the FIRs registered against the
petitioner.
4. Mr. C. S. Azad, learned counsel for the petitioner, has submitted that the
impugned detention order has been passed mechanically and without
independent application of mind. He has submitted that the
constitutional safeguards guaranteed under Article 22(5) of the
Constitution have been violated and that the material relied upon by the
detaining authority does not establish any live and proximate link
between the alleged activities of the petitioner and the necessity for his
preventive detention. It has further been argued that the petitioner was
already in custody when the detention order was passed and that the
alleged prejudicial activities relied upon by the respondents are stale and
remote.
5. Per contra, Mr. Dewakar Sharma, learned Dy. AG has submitted that the
impugned detention order has been passed after due consideration of the
material placed before the detaining authority and upon recording the
requisite subjective satisfaction. He has further argued that the detention
is not founded merely upon registration of FIRs, but upon the overall
conduct and antecedents of the petitioner. Learned counsel has further
HCP No. 8/2026 Page 3 of 6

submitted that the grounds of detention and the relevant material were
duly communicated and supplied to the petitioner and that there has been
full compliance with the constitutional and statutory safeguards.
6. Heard learned counsel for the parties and perused the record, including
the detention record produced by the respondents.
7. The first and foremost issue which arises for consideration is whether the
representation submitted by the petitioner was considered and disposed
of with the expedition mandated by Article 22(5) of the Constitution of
India.
8. The record reveals that the petitioner, through his mother, submitted a
representation to the Government on 15.01.2026, and vide
communication dated 21.01.2026, the same was forwarded by the
Department of Home to ADGP, CID, J&K. The representation came to
be rejected only on 05.03.2026. Thus, there is a delay of approximately
43 days in consideration and disposal of the representation.
Significantly, the respondents have not placed on record any cogent,
convincing or satisfactory explanation accounting for this considerable
delay.
9. The right of a detenue to make a representation against his preventive
detention under Article 22(5) of the Constitution carries with it a
corresponding constitutional obligation upon the competent authority to
consider such representation with utmost expedition. The Hon’ble
Supreme Court in K.M. Abdulla Kunhi v. Union of India, (1991) 1
SCC 476 , has reiterated that the representation of a detenue is required
to be considered as expeditiously as possible.
HCP No. 8/2026 Page 4 of 6

10. In Sarabjeet Singh Mokha v. DM, Jabalpur, (2021) 20 SCC 98 ,
Hon’ble the Supreme Court of India has observed 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 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.
(emphasis added)

11. In the present case, there is no material before the Court explaining the
delay of approximately 43 days in consideration of the petitioner’s
representation. Preventive detention constitutes an exceptional
curtailment of personal liberty, and the safeguards engrafted in Article
22(5) cannot be treated as matters of mere formality. Where the
constitutional obligation to consider the representation expeditiously is
breached and the delay remains unexplained, the continued detention
cannot be sustained.
12. In view of the foregoing discussion, this Court is of the considered
opinion that, on this ground only, the impugned order of detention
cannot be sustained and is, therefore, liable to be quashed.
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13. Thus, the present petition is allowed and order No. DMR/PSA/01 of
2026 dated 01.01.2026 passed by respondent No. 3-the District
Magistrate, Rajouri, is hereby quashed. The respondents are directed to
release the petitioner forthwith from preventive custody, provided he is
not required in connection with any other case.
14. The detention record, as produced, be returned to the learned Dy AG.

(Rajnesh Oswal)
Judge
Jammu
11.09.2026
Karam Chand
Whether the order is speaking: Yes/No
Whether the order reportable: Yes/No
KARAM CHAND
2026.09.11 01:49
I attest to the accuracy and
integrity of this document
HCP No. 8/2026 Page 6 of 6