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
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 warrantingLPA 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 whichLPA 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
