Jammu & Kashmir High Court – Srinagar Bench
Naseer Ahmad Chalkoo vs Union Territory Of J&K on 5 March, 2026
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No.12
Regular list
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 253/2024
Date of pronouncement:- 05.03.2026.
Uploaded on :- 09.03.2026
Naseer Ahmad Chalkoo.
S/O Khalil Joo Chalkoo, R/O Silikote Uri, District, Baramulla.
Th. his wife, Zahida Begum.
..... Petitioner(s)
Through: -
Mr. N. A. Ronga, Advocate.
V/s
1.Union Territory of J&K, th.
Commissioner, Secretary, Home Department, J&K
Srinagar.
2. District Magistrate, Kupwara, Kashmir.
..... Respondent(s)
Through: -
Mr. Faheem Nissar Shah, GA
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
JUDGMENT
05.03.2026
1. The petitioner in the instant petition filed under Article 226 of the
Constitution has challenged detention Order No. DMK/PSA of 2024 dated
17.05.2024 (for short ” the Impugned order”) passed by the respondent 2
herein (for short “the Detaining Authority”) where-under the petitioner has
been detained under the Provisions of Section 13 of the Jammu and Kashmir
Public Safety Act, 1978 (hereinafter referred to as “the Act”).
2. The impugned order has been challenged by the petitioner on multiple
grounds urged in the petition.
3. Reply affidavit has been filed by the respondents to the petition
wherein, the petition is being opposed, inter-alia, on the grounds that the
petitioner came to be detained by the detaining authority in terms of the
order under challenge after fulfilling all statutory requirements and
complying with constitutional guarantees and that the said order was duly
approved by the Government and upon execution of the same against the
petitioner, the contents of the order and grounds were explained to the
HCP No. 253/2024. Page 1 of 5
petitioner in Urdu and Kashmiri language which he fully understood and
was also informed about making of a representation to the Government
against his detention. It is further stated that since the material furnished to
the detaining authority by the police concerned and intelligence agency
contained credible inputs that petitioner is an associate of terrorist
organization of HM outfit and is indulged in propagating secessionist-
terrorist ideology amongst the youth of the area, the petitioner as such, was
ordered to be detained, more-so when the petitioner despite being bound
down under Section 107/151 Code of Criminal Procedure continued with
his said illegal activities.
Heard learned counsel for the parties and perused the record on
the file including the detention record produced by counsel for the
respondents.
4. According to Mr. N. A. Ronga, appearing counsel for the petitioner,
the detaining authority detained the petitioner without application of mind
inasmuch as, deriving subjective satisfaction, in that, the detaining authority
in the impugned order has stated that the activities of the petitioner are
highly prejudicial to the UT of Jammu and Kashmir and warrant immediate
measures as normal law of the land has proved ineffective to deter him from
indulging him from repeated acts of subversive activities of violence and the
details of such activities were never spelt out in the grounds of detention,
including the details of the recourse taken to any normal law applicable
against the petitioner for such activities and that in fact none of the such
laws were invoked against the petitioner and instead the petitioner came to
be straightaway detained under the preventive law.
Mr. Ronga would further submit that the petitioner has read up to 9th
class not conversant with the English language in which the order and the
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grounds of detention were couched by the detaining authority, as such, could
not make effective representation against his detention.
Mr. Ronga would lastly submit that the grounds of detention framed
by the detaining authority for preventive detention of the petitioner are
vague inasmuch as, non-existent having been made basis for preventive
detention of the petitioner primarily on account of the relations of the
petitioner who allegedly are settled in PoK.
5. Mr. Faheem Nissar Shah, GA, in opposition to the submissions of Mr.
Ronga would heavily rely upon the reply affidavit filed to the petition
inasmuch as, the detention record produced for perusal of the Court today.
Mr. Shah insisted, as such, for dismissal of the petition while reiterating that
in the process of detaining of the petitioner, all statutory provisions and
constitutional guarantees were adhered to and followed.
6. Before proceedings to advert to the rival submission of appearing
counsel for the parties, it would be proper to refer hereunder to the position
of law laid down by the Apex Court in regard to law of preventive detention.
The Apex Court in case tilted as “Rahmatullah vs. State of Bihar and Ors.,
reported in 1979(4) SCC 599, in paragraph-4 observed as under:-
“4. The normal rule of law is that when a person commits an
offence or a number of offences, he should be prosecuted and
punished in accordance with the normal appropriate criminal law;
but if he is sought o be detained under any of the preventive
detention laws as may often be necessary to prevent further
commission of such offences, then the provisions of Article 22(5)
must be complied with. Sub-Article (5) of Article 22 reads:
When any person is detained in pursuance of an order made
under any law providing for preventive detention, the authority
making the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation
against the order.
This Sub-Article provides, inter alia, that the detaining
authority shall as soon as may be communicate the grounds ofHCP No. 253/2024. Page 3 of 5
detention and shall afford him the earliest opportunity of making a
representation against the order. The opportunity of making a
representation is not for nothing. The representation, if any,
submitted by the detenu is meant for consideration by the
Appropriate Authority without any unreasonable delay, as it involves
the liberty of a citizen guaranteed by Article 19 of the Constitution.
The non consideration or an unreasonably belated consideration of
the representation tantamount to non-compliance of Sub-Article (5)
of Article 22 of the Constitution.”
7. Keeping in mind aforesaid position of law and reverting back to the
case in hand, perusal of the detention record produced by counsel for the
respondents reveals that admittedly, the respondent 1 has received a
representation made against the detention of the petitioner dated 6 th June
2024, through his wife, and same has been marked to the Special Director
General, CID on 12th June, 2024 for comments/report.
8. Record also reveals that a similar representation of the petitioner made
by his wife had also been forwarded by the office of the detaining authority
to the respondent 1 on 8th June, 2024.
9. Detention record would further reveal that on 9th October, 2024, the
office of the Additional Director General of Police, CID has addressed a
communication to respondent 1 being the report/comments sought in terms
letter dated 12th June, 2024, providing therein that the petitioner has
provided every possible assistance to the terrorists for carrying out terrorist
acts and his activities remained detrimental to the peace, security,
sovereignty and integrity of the UT of J&K and that there is an apprehension
that he will again indulge in similar activities if released at this stage and
recommended as such, that the representation of the petitioner be rejected
and turned down.
10. Record further tends to show that on 18th October, 2024, respondent 1
has informed the detaining authority that the representation of the petitioner
after being considered has been found without any merit.
HCP No. 253/2024. Page 4 of 5
11. As is manifest from above, the representation submitted by the
petitioner through his wife against his detention has not been essentially
considered and decided by the detaining authority independently but
seemingly has decided and disposed the same on the basis of the comments
and report obtained from the CID wing of the of the police. It also emanates
from the above that the said representation of the petitioner has been
indisputably considered and decided after a considerable period of time in
the months of October, 2024, after having been made in the months of June,
2024, without there being any explanation for the said delay caused in its
disposal. The aforesaid position obtaining in the matter cannot but said to be
a flagrant breach of constitutional provisions contained in Article 22(5) of
the Constitution, rendering the impugned order legally unsustainable.
12. In view of the aforesaid position, the grounds of challenge, urged by
counsel for the petitioner and opposed by counsel for the respondents pale
into insignificance and need not to be adverted to.
13. Viewed thus, the instant petition succeeds, as a consequence whereof
the impugned Order No. DMK/PSA of 2024 dated 17.05.2024, is quashed
with a direction to the respondents including concerned Jail authority to
release the petitioner from preventive detention, unless required in any other
case.
14. The detention record produced by counsel for the respondents is
returned back in the open Court.
(Javed Iqbal Wani)
Judge
SRINAGAR
05.03.2026.
“Abdul Rashid”
Whether approved for reporting? Yes/No
HCP No. 253/2024. Page 5 of 5