Nisam-Ud-Din Najar vs Union Territory Of J&K on 25 March, 2026

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    Jammu & Kashmir High Court – Srinagar Bench

    Nisam-Ud-Din Najar vs Union Territory Of J&K on 25 March, 2026

    Author: Rajnesh Oswal

    Bench: Rajnesh Oswal

     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
    
                                 Case No: LPA No. 50/2025
    
                                                              Reserved on: 04.03.2026
                                                             Pronounced on:25.03.2026
                                                             Uploaded on: 25.03.2026
    
                                              Whether the operative part or full
                                              Judgment is pronounced :Full
    
    Nisam-ud-Din Najar, aged 26 years
    S/O Ghulam Ahmad Najar,
    R/O Khrew, Tehsil Pampore,
    District Pulwama through His Father
    Ghulam Ahmad Najar, aged 61 years.
    
                                                           ...Petitioner(s)/Appellant(s)
    
                        Through: Mr. Wajid Haseeb, Advocate
    
                                        v/s
    
       1. Union Territory of J&K
          Through Principal
          Secretary, Home
          Department, J&K Govt.
          Civil Sectt.
          Srinagar/Jammu.
    
       2. District Magistrate,
          Pulwama.
    
       3. Sr. Superintendent of
          Police, Awantipora.
    
                      Through:         Mr. Furqan Yaqoob, Advocate
    
    
    CORAM: HON'BLE THE CHIEF JUSTICE
           HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.
    
                                     JUDGMENT
    

    PER OSWAL-J

    1. The appellant came to be detained pursuant to order of detention

    SPONSORED

    bearing No. 15/DMP/PSA/24 dated 04.04.2024, passed by the District

    LPA No.50/2025 Page 1 of 7
    Magistrate, Pulwama (respondent No. 2) in exercise of powers under

    Section 8 of the Jammu and Kashmir Public Safety Act, 1978

    (hereinafter referred to as “the Act”). The appellant challenged the

    said order of detention by way of HCP No. 136/2024, which,

    however, came to be dismissed by the learned Writ Court vide

    judgment dated 21.02.2025 (hereinafter referred to as “the impugned

    judgment”).

    2. Being aggrieved of and dissatisfied with the impugned judgment

    dated 21.02.2025, the appellant has assailed the same on the following

    grounds: –

    (i) That the learned writ Court has failed to consider and
    properly appreciate the grounds urged by the appellant in
    the writ petition, thereby rendering the impugned judgment
    unsustainable in law.

    (ii) That the learned writ Court has failed to properly
    appreciate the contention of the appellant that the order of
    detention has been passed by respondent No. 2 without due
    application of mind, inasmuch as the grounds of detention
    are a verbatim reproduction of the police dossier, thereby
    vitiating the order of detention.

    (iii) That the learned writ Court has failed to appreciate that the
    allegations set out in the grounds of detention had no
    nexus with the appellant and were fabricated by the police
    with the sole object of illegally detaining the appellant,
    thereby vitiating the impugned order of detention.

    (iv) That it was specifically urged before the learned writ Court
    that the appellant had been implicated in FIR No. 57/2021
    and was released on bail in February, 2022, and thereafter
    was not involved in any fresh unlawful activity warranting

    LPA No.50/2025 Page 2 of 7
    or necessitating his preventive detention; however, the
    learned writ Court has failed to properly appreciate the
    said contention.

    (v) That it was specifically submitted before the learned writ
    Court that the appellant was not furnished with the relevant
    material forming the basis of the subjective satisfaction
    recorded by the detaining authority, as reflected in the
    order of detention and the grounds of detention; however,
    the learned writ Court has failed to properly appreciate the
    said contention, thereby vitiating the impugned judgment.

    (vi) That the learned writ Court has failed to appreciate that the
    appellant had submitted a representation against the order
    of detention, which was not considered and disposed of by
    the respondents in accordance with law and within a
    reasonable time, thereby violating the constitutional
    safeguards available to the appellant.

    3. Learned counsel for the appellant submitted that the appellant had

    filed a representation against the order of detention to Government,

    but the same was not considered by the competent authority in

    accordance with law. It was further submitted that the appellant had

    earlier been proceeded against under Section 107 Cr.P.C., and upon

    his release, no fresh illegal activity was attributed to him so as to

    warrant his preventive detention under the Act. It was also contended

    that respondent No. 2 has failed to apply his mind while recording the

    requisite satisfaction, inasmuch as the appellant was never arrested in

    FIR No. 90/2020, but in FIR No. 57/2021, thereby reflecting non-

    application of mind on the part of the detaining authority.

    4. Per contra, learned counsel for the respondents has argued that the

    learned writ Court has rightly considered the contentions of the

    LPA No.50/2025 Page 3 of 7
    appellant and after considering the same only, the writ petition

    preferred by the appellant was dismissed. He has further argued that

    the procedural safeguards under the Constitution and the Act were

    duly followed while issuing and executing the order of detention.

    5. Heard learned counsel appearing for the parties and perused the

    record.

    6. The record reveals that, pursuant to the dossier prepared by

    respondent No. 3, a proposal was submitted to respondent No. 2 for

    detaining the appellant under the Act on the ground that his activities

    were prejudicial to the security and sovereignty of the country. Acting

    upon the said dossier, respondent No. 2 issued the order of detention

    dated 04.04.2024. The appellant’s contention that the grounds of

    detention are a mere replica of the dossier is misplaced. A

    comparative analysis of the dossier and the grounds of detention

    reveals that the latter is not a verbatim reproduction of the former.

    Accordingly, the said contention of the appellant is rejected.

    7. It was also contended that the detaining authority had failed to apply

    its mind, inasmuch as reference was made to FIR No. 90/2020, in

    which the appellant was never arrested. It is true that both the dossier

    and the grounds of detention make reference to FIR No. 90/2020

    registered with Police Station, Khrew. The record indicates a

    discrepancy; while the SHO’s initial report referenced only FIR No.

    57/2021, the subsequent dossier and grounds of detention

    inadvertently included FIR No. 90/2020, an evident typographical

    oversight. In such circumstances, the appellant cannot derive any

    LPA No.50/2025 Page 4 of 7
    benefit from the said typographical mistake, particularly when the

    correct FIR number stands duly reflected in the dossier prepared by

    the SHO, Police Station, Khrew.

    8. It was next contended that the representation submitted by the

    appellant was not considered by the respondents. The detention record

    reveals that the appellant had submitted a representation dated

    10.04.2024 to the Home Department; however, the same was not

    considered by respondent No. 1. Though the representation submitted

    to the District Magistrate, Pulwama (respondent No. 2) was

    considered and rejected, the representation addressed to the

    Government was required to be independently considered and decided

    in accordance with law. The mere fact that the Advisory Board had

    considered the representation does not absolve respondent No. 1 of its

    obligation to consider the representation. The failure on the part of

    respondent No. 1 to consider and decide the representation vitiates the

    order of detention and renders the same illegal.

    9. In this context, it would be apposite to take note of the judgment of

    the Hon’ble Supreme Court of India in Sarabjeet Singh Mokha vs.

    District Magistrate, Jabalpur and others, (2021) 20 SCC 98, wherein

    the Supreme Court considered the legal effect of delay in deciding a

    detenu’s representation, as well as the failure to communicate the

    decision to the detenu, on the validity of the order of detention. The

    governing principle has been succinctly laid down in paragraph 47 of

    the said judgment. The relevant extract reads as under:

    “47. By delaying its decision on the
    representation, the State Government deprived
    the detenu of the valuable right which

    LPA No.50/2025 Page 5 of 7
    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.”

    10.We have examined the judgment rendered by the learned writ Court

    and we find that the pivotal issue noticed by us hereinabove has

    escaped the consideration of the learned writ Court.

    11.In light of the above, we are of the considered view that the judgment

    impugned in this appeal is not sustainable in the eyes of law and

    accordingly, the same is set aside. Resultantly, the order of detention

    bearing No. 15/DMP/PSA/24 dated 04.04.2024, passed by the District

    Magistrate, Pulwama (respondent No. 2) under Section 8 of the

    Jammu and Kashmir Public Safety Act, 1978 is quashed. The

    LPA No.50/2025 Page 6 of 7
    appellant shall be released forthwith, if not required in connection

    with any other case.

    12.The record shall be returned to the learned counsel appearing for the

    respondents.

    13.Disposed of as above along with connected CM(s), if any.

                                     (Rajnesh Oswal)              (Arun Palli)
                                         Judge                    Chief Justice
    Jammu
    25.03.2026
    Madan Verma-Secy
                              Whether order is speaking?   Yes/No.
                              Whether order is reportable? Yes/ No.
    
    
    
    
    LPA No.50/2025                                                    Page 7 of 7
     



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