TEAM CODE:66

IN THE
HON ’BLE SUPREME COURT OF INDIA
(F ILED UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA )

SAJID LONE ………….…………..………………………………….PETITIONER

V.

STATE OF KULPAMA..……………….………………………………..RESPONDENT

MEMORIAL FILED ON BEHALF OF THE APPELLANTS AND PETITIONER

11TH KIIT INRA MOOT COURT COMPETITION-2019 [TABLE OF CONTENTS]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS.............................................................................................................. II
INDEX OF AUTHORITIES.............................................................................................................. IV
STATEMENT OF JURISDICTION................................................................................................. VI
STATEMENT OF FACTS................................................................................................................VII
ISSUES RAISED.............................................................................................................................. VIII
SUMMARY OF ARGUMENTS..........................................................................................................X
ARGUMENTS ADVANCED................................................................................................................1
I. THE CASE IS MAINTAINABLE IN THE COURT OF LAW............................................................ 1
A. SPECIAL LEAVE PETITION IS MAINTAINABLE.........................................................................1
B. NATURE OF THE EXTRAORDINARY POWER CONFERRED ON THE SUPREME COURT BY ART.
136 2
C. THERE HAS BEEN GRAVE MISCARRIAGE OF JUSTICE.............................................................. 3
D. PETITIONERS HAVE LOCUS STANDI........................................................................................3
1.The Petitioner has satisfactory grounds for approaching the Court.................................. 4
E. PETITIONER HAS EXHAUSTED ALTERNATIVE REMEDY.........................................................4
II.
THE HIGH COURT OF KULPAMA HAS ERRED IN APPRECIATING THAT THE DETENTION
ORDER IS IN VIOLATION OF PROCEDURE UNDER KULPAMA PUBLIC SAFETY ACT, 1978.............. 5

A.ACTS OF THE PETITIONER WERE NOT INFRINGING PEACE & SECURITY OF THE STATE.......... 5
1.Possession of Explosives is not an act against security of State:............................................ 6
2.Different political ideology doesnot hamper the security of State.......................................... 7
B. PROCEDURAL LAPSES & ERRORS ON THE PART OF STATE.................................................. 7
1.Delay In Confirmation of Detention By The State.................................................................. 8
III. THE HIGH COURT OF KULPAMA HAS NOT RIGHTLY HELD THAT THE ORDER OF DETENTION
DOES NOT VIOLATE ARTICLE 19 1 (A) AND ARTICLE 21 OF THE CONSTITUTION OF INDIA..........9

A. FREEDOM OF SPEECH & EXPRESSION UNDER ARTICLE 19(1)(A) HAS BEEN VIOLATED...... 9
2.Adverse Remarks Against The Government Doesn’t Amount To Charge Of Sedition:.......11
B. VIOLATION OF PETITIONER’S FUNDAMENTAL RIGHT TO LIFE & LIBERTY UNDER ARTICLE
21 12
IV.THE HIGH COURT HAS FAILED TO APPRECIATE THE SCOPE OF JUDICIAL REVIEW IN
PREVENTIVE DETENTION CASES......................................................................................................13
A. NON COMPLIANCE WITH THE PROVISIONS OF ARTICLE 22(5) OF THE CONSTITUTION OF
INDIA............................................................................................................................................. 13
B. THE DETENTION ORDER IS ARBITRARY IN NATURE:..............................................................13
C. UNCONSTITUTIONALITY OF THE IMPUGNED ACT:................................................................ 14
V.THE HIGH COURT WAS NOT RIGHT IN HOLDING THAT THE DISTRICT MAGISTRATE IS THE
CORRECT AUTHORITY FOR CONSIDERING THE REPRESENTATION OF THE DETENU.....................14

A. VIOLATION OF PRINCIPLES OF NATURAL JUSTICE............................................................... 14

B. PETITIONER WAS DENIED PROPER REPRESENTATION..........................................................15
PRAYER........................................................................................................................................... XIV

MEMORANDUM FOR PETITIONER I|PAGE

11TH KIIT INRA MOOT COURT COMPETITION-2019 [LIST OF
ABBREVIATIONS]
LIST OF ABBREVIATIONS

1. A.I.R. All India Reporter

2. Art. Article
3. Cl. Clause
4. Const. Constitution
5. CRPC Code of Ciminal Procedure
6. ed. Edition
7. Govt. Government
8. HC High Court
9. Hon’ble Honorable
10. IPC Indian Penal Code
11. Ltd. Limited
12. Ors. Others
13. PSA Public Safety Act
14. ¶ Paragraph
15. Pvt. Private
16. r Rule
17. § Section
18. S.C. Supreme Court
19. S.C.C. Supreme Court Cases
20. SLP Special leave Petition
21. UN United Nations
22. V. Versus
23. Vol. Volume

MEMORANDUM FOR PETITIONER II | P A G E

11TH KIIT INRA MOOT COURT COMPETITION-2019 [LIST OF
ABBREVIATIONS]

MEMORANDUM FOR PETITIONER III | P A G E

11TH KIIT INRA MOOT COURT COMPETITION-2019 [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

CASES

A.K.Gopalan v. State of Madras ,1950 SCR 88------------------------------------------------------ 12

Abdul Latif Abdul Wahab Sheikh Vs B. K. Jha and another ,(1987) 2 SCC 22-------------------8
Abdul Sattar v. State of Mysore, A.I.R. 1956 S.C. 168----------------------------------------------- 5
Aijaz Ahmad Mir v. State of Jammu & Kashmir, (67/DMP/PSA/06)-------------------------------8
Akram Asif vs State of Jammu and Kashmir and others, 1989 AIR 1899------------------------ 14
Ashok Nagar Welfare Association v. R.K. Sharma, AIR 2002 SC 335----------------------------- 4
Bacchan Singh vs State of Punjab, (1980) (2 SCC 684--------------------------------------------- 14
Bharat Bank ltd. v. Employees of Bharat Bank assoc., 1992 (Supp-2) SCC 29------------------ 4
CCE v. Standard Motor Products, A.I.R. 1989 S.C. 1298.-------------------------------------------1
Durga Shankar Mehta v. Thakur Raghuraj Singh, 1954 AIR 520 1955 SCR 287----------------3
Durga Shankar Mehta v. Thakur Raghuraj Singh, AIR 1954 SC 520------------------------------2
Ghulam Nabi Sumji v. State, c/w OWP No. 533/2016---------------------------------------------- 15
Haryana State Industrial Corpn. v. Cork Mfg. Co., (2007) 8 SCC 120----------------------------3
Jamshed Hormusji Wadia v. Board of Trustees, AIR 2004 SC 1815------------------------------- 4
Jayanarayan Sukul vs State Of West Bengal, 1970 AIR 675--------------------------------------- 15
Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51---------------------------- 15
Kamleshwar Ishwar Prasad Patel Vs Union of India and Others, (1995) 2 SCC 51-----------12
Kedarnathsingh vs State of Bihar, 1962 AIR (SC) 955----------------------------------------------- 6
Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293------------------------------------------------ 2
Kunhayammed v. State of Kerela, AIR 2000 SC 2587------------------------------------------------ 3
Mathai v.George, (2010) 4 S.C.C.358------------------------------------------------------------------ 1
Mir Hasan Khan and Ors. v. The State ,AIR 1951 Pat 60------------------------------------------- 7
Nazir Khan v. State of Delhi, Appeal (crl.) 734 of 2003--------------------------------------------- 7
Rafiq v. State of U.P., (1980) 4 SCC 262--------------------------------------------------------------- 2
Rekha Vs. State of Tamil Nadu and anr, (2011) 5 SCC 244--------------------------------------- 12
Sarvodaya Mills Workers Union v. State of Karnataka, A.I.R. 1994 Kant. 256------------------ 3
Sirpur Paper Mills v. Commissioner of Wealth tax, AIR 1984 SC 1826---------------------------4

MEMORANDUM FOR PETITIONER IV | P A G E

11TH KIIT INRA MOOT COURT COMPETITION-2019 [INDEX OF AUTHORITIES]

Sophia Gulam Mohd. Bham v. State of Maharashtra & ors,AIR 1999 SC 3051---------------- 15
State (NCT of Delhi) v. Navjot Sandhu, Appeal (crl.) 373-375 of 2004---------------------------7
State of Assam v. Barga Dewani, (1970) 3 SCC 236------------------------------------------------- 4
State of Bombay v. Ratilal, AIR 1961 SC 1106-------------------------------------------------------- 4
State of Rajasthan v. Jawan Singh, (1971) Cri. L.J. 1656------------------------------------------- 5
Union Carbide Corporation v. Union of India, (1991) 4 SCC 584---------------------------------2
V.G. RAMCHANDRAN, LAW OF WRITS VOL. I 26 (6th edn.,2006)----------------------------------- 2, 4
Vali pero v. Fernandeo, (1989) 4 SCC 671------------------------------------------------------------ 4
STATUTES

Code of Criminal Procedure, 1973, 6

J&K Public Safety Act,1968. 6

Indian Penal Code, 1860, § 124-A 9

CONSTITUTIONAL PROVISIONS

Constitution of India 1950, Art. 21. 3

Indian Const. art 21 14
Indian Const. art. 136. 1
Indian Const. art. 21 3
Indian Consti. art.19, cl.1(a) 15

BOOKS

6 J. Bentham, Rationale of Judicial EvIdence 355 (W. Tait, 1843). 12

J. Fitzgerald, Salmond on Jurisprudence 299 (12th ed., Sweet and Maxwell Ltd., 3
London 2008
John Chipman Gray, The Nature and Sources of the Law 27 (Columbia University 3
Lectures 1909).
Ratanlal And Dhirajlal, The Indian Penal Code 1787 (32d ed. Lexus Nexus 2010). 7

MEMORANDUM FOR PETITIONER V|PAGE

11TH KIIT INRA MOOT COURT COMPETITION-2019 [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The Petitioner, Mr. Sajid Lone has approached the Hon’ble Supreme Court under Article
136 of the Constitution.
The Hon’ble Supreme Court is vested with jurisdiction, to hear the Special Leave Petition
matter under Article 136 of the Constitution of India and also as the cause of action arises
within the jurisdiction of the Hon’ble Court.
The present memorandum sets forth the facts, contentions and arguments in the present case.
“Article 136- Special leave to appeal by the Supreme Court”
(1)Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India.
(2)Nothing in clause (1) shall apply to any judgment, determination, and sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the Armed
Forces.

MEMORANDUM FOR PETITIONER VI | P A G E

11TH KIIT INRA MOOT COURT COMPETITION-2019 [STATEMENTS OF
FACTS]
STATEMENT OF FACTS

BACKGROUND
 Sajid Lone, a political leader in the state of Kulpama, India is a religious fundamentalist/
extremist. While addressing the public gathering, he usually criticizes the government
policies. It has been alleged at several instances that he has motivated and manipulated
several youth similar ideology.
CIRCUMSTANCES LEADING TO THE SCENARIO
 On a source information, a huge cache of explosive was recovered/seized from the house
of Mr. Sajid as a result of which a First Information Report was lodged and he was
arrested. Therefore, the State Government observed that, it is necessary to detain him by
invoking the provisions of Kulpama Public Safety Act, 1978 in order to prevent him
from indulging in the activities , which are determental to the security of the state.
DETENTION ORDERS UNDER PSA,1978
 On the basis of the facts leading to the scenario, the District Magistrate, Gandhi Nagar,
Kulpama, in exercise of the powers vested in terms of Section 8 Clause (a) of the
Kulpama Public Safety Act, 1978 directed that Sajid Lone be detained for a period of six
months. And was allowed to represent before the District Magistrate. It was confirmed by
the State Government on 10-12-2018 and the order report by the Advisory Board.
APPEAL AGAINST THE ORDER
 The detenu filed a Writ petition before the High Court of Kulpama seeking aside of
detention order on the ground that the order is in violation of the provisions of PSA and
Article 19 1(a) and 21 of the Constitution of India and furtherly contending that District
Magistrate is not the appropriate authority to pass the order of detention and to consider
the representation of detenu.The High Court dismissed the Writ petition filed by the
detenu on the grounds that it is devoid of infirmity and arbitrariness & also DM is the
appropriate authority
PRESENT SITUATION
 The detenu has filed a special leave petition before The Hon’ble Supreme Court under
Article 136 of the Constitution of India challenging the order passed by the High Court.

MEMORANDUM FOR PETITIONER VII | P A G E

11TH KIIT INRA MOOT COURT COMPETITION-2019 [ISSUES RAISED]

ISSUES RAISED

ISSUE-I

WHETHER OR NOT , THE MATTER I S MAINTAINABLE IN THE SUPREME

COURT OF INDIA ?

ISSUE -II
WHETHER OR NOT , THE HIGH COURT OF KULPAMA HAS ERRED IN

APPRECIATING THAT THE DETENTION ORDER IS IN VIOLATION OF PROCEDURE

UNDER KULPAMA PUBLIC SAFETY ACT, 1978 ?

ISSUE -III
WHETHER OR NOT , THE HIGH COURT OF KULPAMA HAS RIGHTLY HELD THAT

THE ORDER OF DETENTION DOES NOT VIOLATE ARTICLE 19 1 (A) AND ARTICLE
21 OF THE CONSTITUTION OF INDIA ?

ISSUE-IV
WHETHER OR NOT , THE HIGH COURT HAS FAILED TO APPRECIATE THE SCOPE

OF JUDICIAL REVIEW IN P REVENTIVE DETENTION CASES ?

ISSUE -V

WHETHER OR NOT , THE HIGH COURT WAS RIGHT IN HOLDING THAT

THE DISTRICT MAGISTRATE IS THE CORRECT AUTHORITY FOR

CONSIDERING THE REPRESENTATION OF THE DETENU ?

MEMORANDUM FOR PETITIONER VIII | P A G E

11TH KIIT INRA MOOT COURT COMPETITION-2019 [ISSUES RAISED]

MEMORANDUM FOR PETITIONER IX | P A G E

11TH KIIT INRA MOOT COURT COMPETITION-2019 [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

1. THE SPECIAL LEAVE PETITION , BY THE PETITIONER IS MAINTAINABLE UNDER

ARTICLE 136 CONSTITUTION OF INDIA BECAUSE :
 There has been Grave miscarriage of Justice;
 Instant case involves substantial questions of law;
 Party is aggrieved by the order of the High Court; therefore he has Locus Standi to
file the petition;
 Petitioner has exhausted alternative remedies.
2. THE HIGH COURT OF KULPAMA HAS ERRED IN APPRECIATING THAT THE

DETENTION ORDER IS IN VIOLATION OF PROCEDURE UNDER KULPAMA PUBLIC

SAFETY ACT , 1978 BECAUSE :

 Acts of The Petitioner Were Not Infringing Peace & Security of The State;
 Possession of Explosives is not an act against security of State;
 Different political ideology doesnot hamper the security of State;
 There has been Procedural Lapses & Errors On The Part of State;
3. THE HIGH COURT OF KULPAMA HAS NOT RIGHTLY HELD THAT THE ORDER OF

DETENTION DOES NOT VIOLATE ARTICLE 19 1 (A) AND ARTICLE 21 OF THE

CONSTITUTION OF INDIA BECAUSE :

 Petitioner’s Freedom of Speech & Expression Under Article 19(1)(A) Has Been
Violated;
 Adverse Remarks Against The Government Doesn’t Amount To Charge Of Sedition;
4. There has been Violation of Petitioner’s Fundamental Right To Life & Liberty .
5. THE HIGH COURT HAS FAILED TO APPRECIATE THE SCOPE OF JUDICIAL
REVIEW IN PREVENTIVE DETENTION CASES BECAUSE :

 Non Compliance with The Provisions of Article 22(5) of the Constitution of India;
 The detention order is arbitrary in nature;
 Unconstitutionality of the impugned Act.

5. THE HIGH COURT WAS NOT RIGHT IN HOLDING THAT THE DISTRICT MAGISTRATE
IS THE CORRECT AUTHORITY FOR CONSIDERING THE REPRESENTATION OF THE

DETENU BECAUSE :
 There has been Violation of Principles Of Natural Justice;

 Petitioner Was Denied Proper Representation.

MEMORANDUM FOR PETITIONER X|PAGE

11TH KIIT INRA MOOT COURT COMPETITION-2019 [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

I. THE CASE IS MAINTAINABLE IN THE COURT OF LAW

[¶1] It is humbly submitted that the present matters consists of the issue concerning
illegal detention of Political leader Sajid Lone1 under the Kulpama Public Safety
Act,1978, should be allowed by the Hon’ble Supreme Court of India. The submissions
have been put forth under the basic limb i.e., that Supreme Court has wide discretionary
powers under Article 1362 to hear the present matter and it is maintainable in the court.3
A. SPECIAL LEAVE PETITION IS MAINTAINABLE

[¶2] The Petitioners have approached this Hon’ble Court under Art. 1364of the
Constitution of India. This petition is filed against the impugned order of High Court of
Kulpama.
[¶3] The appeal is maintainable when justice demands interference by the Supreme
Court of the land.5 SLP can only be entertained on certain grounds when there is question
of law which is of general public importance6 and when there is uncertainty of law.7 The
Supreme Court, under Art. 136,8 is free to adjudicate matters on question of fact, in order
to remove the defects of the case and provide proper justice.9
1.THE SUPREME COURT HAS THE JURISDICTION UNDER ARTICLE 136 TO HEAR THE
PRESENT MATTER.
[¶4] It is submitted that Article 136 of the Constitution states that,
“Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of
India.”1011

1
Intra Moot Proposition, 2019.
2
The Constitution of India, (1950)
3
.D. BASU, COMMENTARY ON THE CONST. OF INDIA 3822 (8th ed., 2008), See also P.P Craig & S.L. Deshpande,
Rights
4
Indian Const. Art. 136.
5
Mathai v.George, (2010) 4 S.C.C.358.
6
CCE v. Standard Motor Products, A.I.R. 1989 S.C. 1298.
7
Central Exercise and Customs v. M/s Venus Castings (p) Ltd., (2000) 4 S.C.C. 206.
8
Indian Const. Art. 136.
9
Cholan Roadways Ltd. v. G. Thirugnanasambandam, A.I.R. 2005 S.C. 570.
10
Ibid.
11
V.G. RAMCHANDRAN, LAW OF WRITS 26 (6th ed.,2006), See also ASIM PANDYA, WRITS AND OTHER
CONST.AL REMEDY 290 (1st ed., 2009)

MEMORANDUM FOR PETITIONER 1|PAGE

11TH KIIT INRA MOOT COURT COMPETITION-2019 [ARGUMENTS ADVANCED]

[¶5] In the case of Chandra Bansi Singh v. State of Bihar12 it has been adjudged by
this Hon’ble Court that the Supreme Court is not only a court of law but also a court of
equity.13 It has been well settled by various other case laws that, if approached, the
Supreme Court can interfere in order to prevent injustice14 and errors of law.15 Under
Article 136, the Supreme Court is vested with an overriding power by virtue of which, the
Court may step in to impart justice.16 The Court’s appellate power under Article 136 is
plenary17 and it may entertain any appeal by granting special leave against any order18
made by any Magistrate, Tribunal or any other subordinate Court on its discretion.19
[¶6] Under Art. 13620an appeal can be filed by any individual or group when there
is substantial question of law or the matter is of public importance.21 In the present case,
the issue before the court was regarding the illegal detention and violation of fundamental
rights of the Petitioner. The decided cases has established that the Supreme Court will
grant special leave appeal in exceptional cases which are:-
 Grave and substantial injustice has been done by disregard to the forms of legal
process, or
 Violation of the principles of natural justice or otherwise.

B. NATURE OF THE EXTRAORDINARY POWER CONFERRED ON THE SUPREME COURT BY

ART. 136

[¶7] The powers given by Article 136 are in the nature of special or residuary
powers which are exercisable outside the purview of ordinary law relating to appeal, in
cases where needs of justice demand interference by the Supreme Court of the land. The
Article is worded in the widest terms possible.22
[¶8] It vests in the Supreme Court a plenary jurisdiction23 in the matter of
entertaining and hearing appeals, by granting of special leave against any kind of

12
Chandra Bansi Singh v. State of Bihar, (1984) 4 SCC 316.
13
DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA, 890 (8TH ED. 1999).
14
Durga Shankar Mehta v. Thakur Raghuraj Singh, AIR 1954 SC 520; See also, Union Carbide Corporation v.
Union of India, (1991) 4 SCC 584.
15
Rafiq v. State of U.P., (1980) 4 SCC 262.
16
Kerala SEB v. Kurien E. Kalathil, (2000) 6 SCC 293
17
Delhi Judicial Service Association v. State of Gujarat, AIR 1991 SC 1291
18
Supreme Court Handbook, Practice and Procedure, 1966
19
Supra Note 7
20
Indian Const. Art. 136.
21
Supra note 2.
22
Ibid.
23
See, Supra 4

MEMORANDUM FOR PETITIONER 2|PAGE

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judgment or order made by the court in any cause.24 The powers could be exercised in
spite of the specific provisions for appeal contained in the Constitution or other laws. 25
The Constitution did not for the best of reasons choose to fetter the powers exercisable
under this Article in any way.26

C. THERE HAS BEEN GRAVE MISCARRIAGE OF JUSTICE

[¶9] Clause (1) of the Article confers very wide and extensive powers on the
Supreme Court. 27 When the judgment of the High Court has led to serious miscarriage of
justice, the Supreme Court, may not refrain from doing its duty and abstain from
interfering and doing justice to the aggrieved party.28
[ ¶ 10 ] In case of Indira Kaur And Ors. vs Sheo Lal Kapoor29, it was held as
following:- “If and when the Court is satisfied that great injustice has been done it is not
only the 'right' but also the 'duty' of this Court to reverse the error and the injustice and to
upset the finding notwithstanding the fact that it has been affirmed thrice.”
[ ¶ 11 ] Having regard to the wide scope of powers conferred on this court under Art.
136 should be exercised or not; and the determination of the terms and conditions, is a
matter which this court has to decide on the facts of each case and the facts of the present
case, form a clear path for the petition to fall under the wide powers of the court.30

D. PETITIONERS HAVE LOCUS STANDI

[ ¶ 12 ] ‘Locus Standi’, meaning ‘standing to sue’, is a right of an individual or groups

to brought a case into the court of law for adjudication by instituting proceedings in the
court.31In the present case, applicants were aggrieved by the order of High Court;
therefore, they had ’locus standi’ in this case.
[ ¶ 13 ] A person who is aggrieved from any order, judgment or action by any tribunal
or lower court has the satisfactory grounds to approach the Supreme Court under Article
136 for Special Leave.32 This has been held by the court many times in cases like Dr.

24
DR. SUBHASH C. KASHYAP, CONST.AL LAW OF INDIA 812 (2008)
25
Dhakeshwari Cotton Mills Ltd.v. Commissioner of Income Tax, A.I.R. 1955 S.C. 65.
26
Haryana State Industrial Corpn. v. Cork Mfg. Co., (2007) 8 SCC 120
27
Supra note 2.
28
Kunhayammed v. State of Kerela, AIR 2000 SC 2587
29
Indira Kaur And Ors. vs Sheo Lal Kapoor (1988) 2 SCC 488, 499:AIR 1988 SC 1074
30
JUSTICE B.P. BANERJEE, WRIT REMEDIES 107 (4th ed., 2008) (Hereinafter Banerjee, Writ remedies)
31
Sarvodaya Mills Workers Union v. State of Karnataka, A.I.R. 1994 Kant. 256.
32
Durga Shankar Mehta v. Thakur Raghuraj Singh, 1954 AIR 520 1955 SCR 287

MEMORANDUM FOR PETITIONER 3|PAGE

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Manju Varma vs State Of U.P. & Ors.3334

1.THE PETITIONER HAS SATISFACTORY GROUNDS FOR APPROACHING THE COURT

[ ¶ 14 ] It is observed that defendant should be given a fair opportunity to defend their

cases.35It is only when some glaring error leading grave failure of justice is made out; the
court will allow its jurisdiction to be invoked.36 Where the impugned order manifestly
wrong or ex-facie, leave is granted. Leave is also granted in cases where substantial grave
injustice has been done.37
[ ¶ 15 ] Where the question raised was a pure question of law, leave is granted.38 It is
needless to explain how many substantial questions of law can be outgrown out of the
numerous issues involved in this petition.39 In this case there has been a miscarriage of
justice as the petitioner was denied justice because of rejection of his petition by the High
Court even though it was very evident from the prima facie facts that, there has been
many procedural errors in the detention order and its mode of implementation ,which are
even contradictory to the provisions of Kulpama Public Safety Act,1978. This petition
cannot be dismissed and hence is maintainable in this Hon’ble court. Therefore, the
impugned order of the high court should be held invalid.

E. PETITIONER HAS EXHAUSTED ALTERNATIVE REMEDY

[ ¶ 16 ] It has been ruled by the Hon’ble court in case of Jamshed Hormusji Wadia v.
Board of Trustees40, that mere existence of alternative relief is not a bar for granting
leave under Art. 136.41
[ ¶ 17 ] Article 136 of the Constitution confers discretionary appellate jurisdiction on
the Supreme Court against any order, but the said jurisdiction is not subject to any
condition that the party invoking it should exhaust all other remedies.42 In this case also,
the Petitioner before approaching Hon’ble Supreme Court, had exhausted all his
alternative remedies by representing infront of the District Magistrate & also by filing

33
Dr. Manju Varma vs State Of U.P. & Ors, Civil Appeal No. 8290 of 2002, AIR 2003 SC 324
34
V.G. RAMCHANDRAN, LAW OF WRITS 26 (6th ed.,2006), See also ASIM PANDYA, WRITS AND OTHER
CONST.AL REMEDY 290 (1st ed., 2009)
35
Ashok Nagar Welfare Association v. R.K. Sharma, AIR 2002 SC 335
36
State of Assam v. Barga Dewani, (1970) 3 SCC 236
37
DR. SUBHASH C. KASHYAP, CONST.AL LAW OF INDIA 812 (2008)
38
Sirpur Paper Mills v. Commissioner of Wealth tax, AIR 1984 SC 1826
39
JUSTICE B.P. BANERJEE, WRIT REMEDIES 107 (4th ed., 2008) (Hereinafter Banerjee, Writ remedies)
40
Jamshed Hormusji Wadia v. Board of Trustees, AIR 2004 SC 1815
41
Bharat Bank ltd. v. Employees of Bharat Bank assoc., 1992 (Supp-2) SCC 29
42
State of Bombay v. Ratilal, AIR 1961 SC 1106; Vali pero v. Fernandeo, (1989) 4 SCC 671

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writ petition before the Hon’ble High Court also.43

II. THE HIGH COURT OF KULPAMA HAS ERRED IN APPRECIATING THAT THE DETENTION
ORDER IS IN VIOLATION OF PROCEDURE UNDER KULPAMA PUBLIC SAFETY ACT, 1978

[ ¶ 18 ] It is most humbly submitted before the Hon'ble court that the acts done by the
petitioners does not give rise to any of the liabilities chatted upon him. The order of
detention of the petitioner is full of legal and procedural flaws. The dossier which was
prepared is completely bogus , vague and politically motivated . The order of detention is
patently illegal, unconstitutional, and in violation of the provisions of Kulpama Public
Safety Act, 1978. The detention is against the law laid down by the apex court and even
the said high court in previous similar cases. The authorities have not followed the
provisions of law in the case while detaining him under the preventive law, which renders
his detention completely illegal.
A.ACTS OF THE PETITIONER WERE NOT INFRINGING PEACE & SECURITY OF THE
STATE

[ ¶ 19 ] It is most humbly submitted that the penal actions imposed on the petitioner
are invalid and unjustifiable. The Sessions Court and High Court have erroneously
charged them of IPC, 1860 without any substantial evidence. The appellants have been
subjected to procedural lapse on the part of the State as the charges framed against him
are totally futile without any legal standing over it. The petitioner’s activities as alluded
to in the grounds of his detention being such as could be the subject matter of
prosecution and punishment under the penal law of the land could not be made the subject
matter of their detention.44
[ ¶ 20 ] The Kulpama Public Safety Act ,1978 under section 8 (1) (a-1)45 have laid
down the offences under which a person can be detained but in the instant cases , the
dossier only states that on the basis of 18 anticident cases and certain current cases like
possession of explosives and political statements , which even don’t fall under the
category of hampering security of the state and the main object of PSA is the detention of
those who are hampering the security and peace of the state.
[ ¶ 21 ] If we refer to the case of Asif Ahmad Bhat vs State Of J&K46 , in which the

43
JUSTICE B.P. BANERJEE, WRIT REMEDIES 107 (4th ed., 2008) (Hereinafter Banerjee, Writ remedies)
44
Karim Bux And Ors. vs State Of Jammu And Kashmir, 1969 CriLJ 907
45
Kulpama Public Safety Act, 1978
46
Asif Ahmad Bhat vs State Of J&K, HCP No. 254/2017

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same Hon’ble high court has observed that“ detention on grounds that the
allegations/grounds of detention are vague and mere assertions of the detaining authority
and no prudent man can make an effective representation against these allegations and
can only be defended in a court of law, as the detention order suffers from this inherent
defect, so there is no need to discuss ,others grounds taken in this petition and thus the
detention is illegal”. Therefore , in the instant case also ,the petitioner has been framed
on such charges on a mere presumption without any direct evidence against him and even
the charges are not clear.
1.POSSESSION OF EXPLOSIVES IS NOT AN ACT AGAINST SECURITY OF STATE:

[ ¶ 22 ] It is humbly submitted that ,the detention order is not in terms of the of the
rule under which it purports to have been made and therefore furnishes no legal
justification for detention. The detention order has been in order to prevent him from
induldging in the activities, which are detrimental to the security of the state.
[ ¶ 23 ] Here the court has failed to understand the terms “Security of the State.” In
the case of Commissioner of Police and Others vs C. Anita47, the court has held that “ it is
the absence of disorder involving breaches of local significance in contrasdiction to
national upheavels, such as revolution, civil strife, war that affects the security of the
state. In the present case, there is no such activities done by the petitioner so that the
court can make such detention order against him.”
[ ¶ 24 ] In the instant case The F.I.R. reported against the petitoner on the ground that
he was in possession of huge explosives but the court failed to understand that mere
possesion of explosives doesnot mean that is hampering the security of the state.
[ ¶ 25 ] Also in the case of Kedarnathsingh vs State of Bihar48, the Court held that “the
intention of doing any activity which is agsinst the security of the state has to be
established by the court to detain him.” Here, a collection of these explosives or seizing
of them from the house of the petitioner need not necessarily mean that the petitioner
would involve in any activities which is prejudicial to the security to state. Until and
unless, there is no such material in record to establish that these explosives were collected
with the intention of doing anything prejudicial to the security of the state, there can never
be any conclusion drwan by the Court. The definition of security of the state means
prevention from any revolution, civil stife and war. It meant that the District Magistrate
has passed such order to prevent the petitoner in causing any activiting related to war.
47
Commissioner of Police Vs. C. Anita, 2004 A.I.R. S.C.W. 4750
48
Kedarnathsingh vs State of Bihar, 1962 AIR (SC) 955

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[ ¶ 26 ] Further, in the case of Mir Hasan Khan and Ors. v. The State49, the Division
Bench of Patna High Court held that “it must be shown that the seizure of the armoury
was part and parcel of a planned operation against the state that can hamper the security
of the state. The intention and purpose of any such operations directed against the
government machinery is an important criterion”. But in this case, there has been no
instance seen which involves that the petitioner wants to strike at the sovereign authority,
there by making the allegation that his possession of explosives makes him liable under
PSA , moreover the same case is under trial and again charging him under PSA is
arbitrary in nature.
2.DIFFERENT POLITICAL IDEOLOGY DOESNOT HAMPER THE SECURITY OF STATE

[ ¶ 27 ] In the present case, the court has considered the political views of the
petitioner to affirm the order of detention. But the Court failed to understand that it is
possible that the accused might might have a political ideology, different from the
Government of India or other political parties functioning in India. But it is important to
show that their political ideology was such that it preached disaffection and
provocatication insurgency.50
[ ¶ 28 ] If we refer to the case of, Nazir Khan v. State of Delhi51, the Court held that
the line dividing preaching disaffection towards the government and legitimate political
activity in a democratic set-up cannot drawn. It is the fundamental right of every citizen
to have his own political theories and ideas and to propagate them and work for their
establishment so long as he does not seek to do so by force and violence and contravene
any provision of law. In the present case, there has been no use of violence or happening
of any unlawful activity to any provision of law by the petitioner, nor was any immediate
reaction or unlawful activity happened against the state basing on the remarks of the
petitioner.

F. PROCEDURAL LAPSES & ERRORS ON THE PART OF STATE

[ ¶ 29 ] It is humbly submitted that , as we have already stated that there has been
error in terms of the offenses the petitioner has been charged with and even the charges

49
Mir Hasan Khan and Ors. v. The State ,AIR 1951 Pat 60
50
State (NCT of Delhi) v. Navjot Sandhu, Appeal (crl.) 373-375 of 2004
51
Nazir Khan v. State of Delhi, Appeal (crl.) 734 of 2003

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and grounds of most of the charges are not very clear. If we refer to the case of Aijaz
Ahmad Mir52, “a detention order issued in June 2006 was quashed by the High Court in
December 2006 on the grounds that insufficient material had been provided in the
grounds of detention and that the detaining authority had not applied its mind (the judge
also found that the grounds of detention was merely a reproduced copy of the police
dossier). The new detention order of February 2007 mentioned only the older allegations
along with Aijaz Ahmad Mir’s alleged “deep involvement [with armed groups] and the
security scenario of District Pulwama””.
[ ¶ 30 ] Further , the Apex Court in the case of Abdul Latif Abdul Wahab Sheikh Vs B.
K. Jha and another53has held that :
"The procedural requirements are the only safeguards available to a detenue since the
court is not expected to go behind the subjective satisfaction of the Detaining Authority.
The procedural requirements are, therefore to be strictly complied with if any value is to
be attached to the liberty of the subject and the Constitutional rights guaranteed to him in
that regard."
1.DELAY IN CONFIRMATION OF DETENTION BY THE STATE

[ ¶ 31 ] It is most humbly submitted that , as per section 4 of the Kulpama Public

Safety Act, “When any order is made under this Section by an officer mentioned in sub-
section (2), he shall forthwith report the fact to the Government together with the grounds
on which the order has been made and such other particulars, as in his opinion have a
bearing on the matter, and no such order shall remain in force for more than twelve days
after the making thereof unless in the meantime it has been approved by the
Government.”
[ ¶ 32 ] If we refer to the facts of the instant case :
“detention order alongwith the grounds of detention were served upon the detenu through
the Superintendent of Police, Gandhi Nagar, Kulpama on 05-10-2018”;
“The District Magistrate rejected the representation of the detenu and affirmed the order
of detention. The State government on 10-12-2018 confirmed the detention order after
report by the Advisory Board.”
[ ¶ 33 ] Hence,it is very much evident from the facts of the case that , confirmation of
detention was approved by the government after 67 days , whereas as per section 4 of the
PSA ,1978 it has to be done within twelve days . This clearly shows that , there has been
52
Aijaz Ahmad Mir v. State of Jammu & Kashmir, (67/DMP/PSA/06)
53
Abdul Latif Abdul Wahab Sheikh Vs B. K. Jha and another ,(1987) 2 SCC 22

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grave and serious procedural lapse on the part of state in implementing the detention
order.If we refer to the case of , S.K. Salim v State of West Bengal54 , a two judge Bench
of this court observed that laws of preventive detention must be construed with the
greatest strictness.
[ ¶ 34 ] Also, in the case of Hetchin Hakoip v. State of Manipur & Ors55 , where there
was a delay in filing the report by the Magistrate to the State Government for confirming
the detention , the Hon’ble apex court allowed the petition and held that “since no
justification was sought to be established for the delay in reporting the detention to the
state government, in the circumstances, we allow the appeal and set aside the impugned
judgment and order of the High Court dismissing the Writ Petition. In consequence, the
order of detention shall stand set aside.” This lapse of time by itself cast a cloud on the
legality of the detention. Hence, in the instant case also the lapse of time by itself cast a
cloud on the legality of the detention.
III. THE HIGH COURT OF KULPAMA HAS NOT RIGHTLY HELD THAT THE ORDER OF
DETENTION DOES NOT VIOLATE ARTICLE 19 1 (A) AND ARTICLE 21 OF THE
CONSTITUTION OF INDIA

[ ¶ 35 ] It is most humbly submitted that, the . detention order of the petitioner is

completely violative of fundamental rights of the petitioner , petitioner fundamental right
under Article 19(1)(a) i.e. freedom of speech and expression and Article 21 i.e. right to
life and liberty has been violated by the arbitrary and illegal detention orders.
A. FREEDOM OF SPEECH & EXPRESSION UNDER ARTICLE 19(1)(A) HAS BEEN VIOLATED

[ ¶ 36 ] It is humbly submitted before Hon’ble Court that Freedom of speech,

considered the basic freedom by most philosophical thinkers, consists of several facets,
including the right to express one’s opinion unhindered, unfettered by the fear of
retribution. It is one of the most basic elements for a healthy, open minded democracy
and is foundation of any democratic society56.
[ ¶ 37 ] The freedom of speech under Article 19(1)(a) includes the right to express
one’s views and opinions at any issue through any medium. It thus includes the right to
propagate opinion. The Preamble of the Constitution of India inter alia speaks of liberty
of thought, expression, belief, faith and worship.

54
S.K. Salim v State of West Bengal, (1975) 1 SCC 653
55
Hetchin Hakoip v. State of Manipur & Ors, Criminal Appeal No. 911 OF 2018
56
Union of India V. Motion Picture Association , AIR 1999 SC 23345

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[ ¶ 38 ] In the case of RomeshThappar v. Union of India57, it was held that: “19(1)(g)

is the very basis and essence of the constitution and our democracy” .Also in the case of
Maneka Gandhi V. Union of India58,Bhagwati J.,has observed :“Democracy is based
essentially on free debate and open discussion, for that is the only corrective of
government action in a democratic set up. If democracy means government of the people
by the people, it is obvious that every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his rights of
making a choice, free & general discussion of public matters is absolutely essential.”59
[ ¶ 39 ] In the instant case , the petitioner has been detained on the basis of the fact
that, he was making adverse remark against the government. right of freedom to speech
and expression granted by Article 19(1)(a) is not completely unchecked.Article 19(2)
empowers the state to place restriction on the fundamental right of speech and expression.
[ ¶ 40 ] In the case of Chintaman Rao V. State of M.P.60, the apex court has held
that :"The phrase 'reasonable restriction' connotes that the limitation imposed on a
person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond
what is required in the interests of the public. The word 'reasonable' implies intelligent
care and deliberation, that is, the choice of a course which reason dictates.The following
principles and guidelines has been laid down for considering the constitutionality of a
statutory provision upon a challenge on the alleged vice of unreasonableness of the
restriction imposed by it61:
(a) The restriction sought to be imposed on the Fundamental Rights guaranteed by
Article 19 of the Constitution must not be arbitrary or of an excessive nature so as to
go beyond the requirement of felt need of the society and object sought to be achieved.
(b) There must be a direct and proximate nexus or a reasonable connection between the
restriction imposed and the object sought to be achieved.
(c) It is imperative that for consideration of reasonableness of restriction imposed by a
statute, the Court should examine whether the social control as envisaged in Article
19 is being effectuated by the restriction imposed on the Fundamental Rights.

57
RomeshThappar v. Union of India ,(1950) S.C.R. 594
58
Maneka Gandhi V. Union of India ,1978 AIR 597,
59
Speiser V. Randall, 357 US 513.
60
Chintaman Rao V. State of M.P ,AIR 1951 SC 11
61
Papnasam Labour Union V. Madura Coats Ltd, 1995 AIR 2200, 1995 SCC (1) 501

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(d) Restriction imposed on the Fundamental Rights guaranteed under Article 19 of the
Constitution must not be arbitrary, unbridled, uncanalised and excessive and also not
unreasonably discriminatory.
[ ¶ 41 ] If we apply the above principles , in the instant case then it is very evident that
the detention of the petitioner on the ground that, he was making adverse remark against
the government is completely a violation of fundamental right of the petitioner and the
restriction imposed upon him is in no way reasonable rather excessive.
2.ADVERSE REMARKS AGAINST THE GOVERNMENT DOESN’T AMOUNT TO
CHARGE OF SEDITION:

[ ¶ 42 ] In Kedarnath V. State of Bihar62 where the Privy council’s interpretation of

“Sedition” was edited i.e. it was narrowed down to fit the current scenario as well as to
fall within the ambit of 19(2) thereby becoming a reasonable restriction.The SC made it
clear that allegedly seditious speech and expression may be punished only if the speech is
an ‘incitement’ to ‘violence’, or ‘public disorder’.The crime of sedition over the years has
been narrowed down to the extent that merely criticizing the policies and actions of
government will not attract the crime of sedition but if the actions and words incite the
feelings of hatred and disaffection in the minds of the audience, it will be considered as
sedition.63
[ ¶ 43 ] Further , recently in the case of Common Cause & Anr. v Union of India64 , it
was held by the Honble Court that “ mere criticism of government won’t amount to a case
of sedition under section 124-A” ,It is submitted that the charges of adverse remarks
impliedly amounting to sedition against the accused have failed to stand up to judicial
scrutiny. As, they were no way resulted in incitement of violence or outbreak of any form
of violence, thereby not endangering the peace and tranquilty of the state. Hence, an order
of detention on the basis of certain adverse remarks or criticism of Government can’t be
considered as a ground for detention and are violative of Article 19(1)(1). Petitioner has
been framed with a view to instil fear and to scuttle dissent and are in complete violation
of the scope of sedition laid down Kedarnath’s case.

62
Kedarnath V. State of Bihar ,1962 AIR 955
63
Ibid.
64
Common Cause & Anr. v Union of India, WRIT PETITION (CIVIL) NO. 683 OF 2016

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B. VIOLATION OF PETITIONER’S FUNDAMENTAL RIGHT TO LIFE & LIBERTY UNDER

ARTICLE 21

[ ¶ 44 ] It is most humbly submitted that ,Article 21 of the constitution of India has

protected the life and personal liberty of people by providing that no person shall be
deprived of his life or personal liberty except according to the procedure established by
law. The word established is used in Article 21 in order to denote and ensure that the
procedure prescribed by law must be defined with certainty in order that those who are
deprived of their fundamental right to life or liberty must know the precise extent of such
deprivation.
[ ¶ 45 ] The law providing for preventive detention has to be strictly construed
keeping in view the delicate balance between social security and citizen freedom. Thus if
the preventive detention has not been ordered in strict conformity with law authorizing
detention, the detenue is entitled to be released.65As,Preventive detention, in effect, is an
invasion to personal liberty which infringe the right to liberty guaranteed by Article 21 of
the Constitution of India. Preventive detention, in view of exception to Article 21, has to
be reasonable, shall not be on the ipse dixit of the detaining authority. Preventive
detention wherever permissible shall adhere to the procedural safeguards. Infraction of
safeguards renders the order of detention unsustainable.
[ ¶ 46 ] In the case of Rekha Vs. State of Tamil Nadu and anr66"Article 22 (3)(b) of the
Constitution of India permits preventive detention, we cannot hold it illegal, but we must
confine the power of preventive detention to very narrow limits, otherwise we will be
taking away the great right to liberty guaranteed by Article 21 of Constitution of India.It
follows therefore that if law of land (Indian Panel Code and other penal statues) can deal
with the situation, recourse to the preventive detention law will be illegal."

[ ¶ 47 ] Also , in the case of Kamleshwar Ishwar Prasad Patel Vs Union of India and
Others67, the Supreme court observed:"The history of liberty is the history of procedural
safeguards. These procedural safeguards are required to be zealously watched and
enforced by the Court and their rigour cannot be allowed to be diluted on the basis of the
nature of alleged activities of the detenue." Since, in the instant case as it has been made

65
A.K.Gopalan v. State of Madras ,1950 SCR 88
66
Rekha Vs. State of Tamil Nadu and anr, (2011) 5 SCC 244
67
Kamleshwar Ishwar Prasad Patel Vs Union of India and Others, (1995) 2 SCC 51

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pretty clear that there has been procedural lapses and the detention order is patently illegal
and in such case detaining the Petitioner is completely a case of violation of Petitioner’s
right to life and liberty under Article 21.

IV.THE HIGH COURT HAS FAILED TO APPRECIATE THE SCOPE OF JUDICIAL REVIEW IN
PREVENTIVE DETENTION CASES

A. NON COMPLIANCE WITH THE PROVISIONS OF ARTICLE 22(5) OF THE CONSTITUTION

OF INDIA

[ ¶ 48 ] It is contended that Judicial review is an essential component of the rule of

law,which is a basic feature of the Indian Constitution. Every State action has to be tested
on the anvil of rule of law and thatexercise is performed, when occasion arises by the
reason of a doubt raised in that behalf, by the courts.68
[ ¶ 49 ] Despite the baseline, that emerges from the existing case law on the subject of
preventive detention is that whenever preventive detention is called in question in a court
of law, the first and foremost task before the Court is to see whether the procedural
safeguards, guaranteed under Article 22(5) Constitution of India69 and Preventive
Detention Law pressed into service to slap the detention, are adhered to or not.70
[ ¶ 50 ] Our Constitution provides adequate safeguards under clauses (5) and (6) of
Article 22to the detenue who has been detained in pursuance of the order made under any
law providing for preventive detention. He has right to be supplied copies of all
documents, statements and other materials relied upon in the grounds of detention without
any delay. The predominant object of communicating the grounds of detention is to
enable the detenue at the earliest opportunity to make effective and meaningful
representation against his detention.
B. THE DETENTION ORDER IS ARBITRARY IN NATURE:

[ ¶ 51 ] Arbitrariness is the very negation of the Rule of law. Satisfaction of the basic
test in every state action in sine qua lion to its validity. The meaning and the true import
of arbitrariness is more easily visualised than precisely. Doctrine of Fairness / Non-
Arbitrariness laid the foundation of substantive Due Process in our country.Rule of Law

68
Gurbachan Singh v. State of Bombay & anr AIR 1952 SC 221.
69
Constitution of India,1950.
70
BasuD.D, Constitution of India, 14th edition 2009, LexisNexis, Butterworths Wadhwa Publication Nagpur.

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permeates the entire fabric of the Indian Constitution excludes arbitrariness.71 Every state
action must be non-arbitrary and reasonable otherwise the court will strike it down.
[ ¶ 52 ] In the following the due process of law has not been followed by the State. In
the present case, the Detention order doesnot indicate that the detenue was informed that
the detenue may file a representation against the Detention order to the Government. It
needs no emphasis that right to file representation against the Detention order can be
meaningful and effective only when the detenue in the first instance is informed that the
detenue may make representation against the detention order made by the District
Magistrate72.
C. UNCONSTITUTIONALITY OF THE IMPUGNED ACT:

[ ¶ 53 ] In the impugned Act, the ground of detention is providede under which the
accused can be detained. However, Section 8 (1)(a-i) of the act state that the detention
order can be passed on the basis to prevent someone acting prejudicially which can
hamper the security of the state. The impugned act has provided a lot of discreationary
power to the officers under section 8(2)(i) to detain a person if satisfied by the grounds.
[ ¶ 54 ] But, in the act the security of the state has not been defined whcih can give
alot of discretionary power to the officers to detain someone by bringing any arbitrary
ground and putting them in the ambit of the security of the state. It is required to prove
the intention of the perosn to act pre judicial to the security of the state, but the act
doesnot talk about the intention of the person which vested the power on the officers to
order arbitrarily. In determinig the constitutionality of a statute, the Court would not take
into consideration the motives of the Legialature but the real effect of the statute on the
Fundamental Rights of the person in question.
V.THE HIGH COURT WAS NOT RIGHT IN HOLDING THAT THE DISTRICT MAGISTRATE IS
THE CORRECT AUTHORITY FOR CONSIDERING THE REPRESENTATION OF THE DETENU

A. VIOLATION OF PRINCIPLES OF NATURAL JUSTICE

[ ¶ 55 ] It is humbly submitted that Under the PSA, detention is overseen by two

mechanisms: the District Magistrate / Divisional Commissioner who issues the detention
order on the basis of information provided by the police, and the Advisory Board. Both
the Divisional Commissioner and the District Magistrate are executive officers who act

71
Bacchan Singh vs State of Punjab, (1980) (2 SCC 684)
72
Akram Asif vs State of Jammu and Kashmir and others, 1989 AIR 1899

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on behalf of the state authorities. Despite the name, the District Magistrate (DM) is not a
judicial magistrate. Like the Divisional Commissioner, he is a purely executive officer
and responsible for administration of a district, with some powers related to “law and
order.”
[ ¶ 56 ] Ghulam Nabi Sumji v. State73 and others as follows: “The duty is cast on the
Detaining Authority both to issue preventive orders and has to shun the path of casualness
and arbitrariness.”In practice however, as is evident from the case , the executive officers
do not play such a balancing role and tend to accept claims made by the police without
questioning them. Resulting in violation of principle of Natural Justice.
B. PETITIONER WAS DENIED PROPER REPRESENTATION

[ ¶ 57 ] If we refer to section 16 of the PSA , it provides for representation of the

deteneu to the advisory board. But in the present case, no such opportunity was provided
to the petitioner to represent in front of the advisory board and his detention order was
approved.In the case of Jayanarayan Sukul74 , it was held that : “if, however, the
Government will not release the detenu the Government will send the case along with
the detenu's representation to the Advisory Board.
[ ¶ 58 ] The constitutional right to make representation guaranteed by Art. 22 (5) must
be taken to include the necessary implication te contitutional right to proper consideration
of the representation by the authority to whom it is made.The ultimate objective of Art.
22(5) is the most speedy consideration of the representation by the authorities.75

[ ¶ 59 ] In the case of Sophia Gulam Mohd. Bham v. State of Maharashtra & ors76, it
was held that:
"The right to be communicated the grounds of detention flows from Article 22(5) while
the right to be supplied all the material on which the grounds are based flows from the
right given to the detenue to make a representation against the order of detention.”Which
unfortunately was denied to the petitioner in the instant case.

73
Ghulam Nabi Sumji v. State, c/w OWP No. 533/2016
74
Jayanarayan Sukul vs State Of West Bengal, 1970 AIR 675
75
Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51
76
Sophia Gulam Mohd. Bham v. State of Maharashtra & ors,AIR 1999 SC 3051,

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PRAYER

In the lights of facts stated, issues raised, authorities cited and arguments advances it is most
humbly prayed before this Hon’ble Court that:
1) The Special Leave Petition filed by the petitioner under Article 136 of Constitution of
India is maintainable in the Supreme Court of India.
2) The detention order is in violation of procedure under Kulpama Public Safety Act,
1978
3) The order of detention does violate Article 19 1 (a) and Article 21 of the Constitution
of India
4) The High Court has failed to appreciate the scope of Judicial Review in Preventive
Detention cases.
5) District Magistrate is not the correct authority for considering the representation of
the detenu in the instant case.
6) To declare the detention illegal and to release the petitioner.

And pass any such order, writ or direction as the Honourable Court deems fit and proper,
for this the petition shall duty bound pray.
All of which is respectfully Submitted
______________________________
______________________________
COUNSEL OF PETITIONER

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