Naseer Ahmad Chalkoo vs Union Territory Of J&K on 5 March, 2026

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    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

    SPONSORED

    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

    HCP No. 253/2024. Page 2 of 5
    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 of

    HCP 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
     



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