HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Reserved on : 23.02.2024

Pronounced on : 02.04.2024

Case:- WP(Crl) No. 275/2023

Aftab Hussain Dar, Age 22 years,

S/o Ab Gani Dar

R/o Avindgund Tehsil Rajpora

District Pulwama

Through his father

Ab Gani Dar, Aged 58 years,

S/o Late Ghulam Ahmad Dar,

R/o Avindgund Tehsil Rajpora

District Pulwama.

….Petitioner(s)

Through: Mr. G. N. Shaheen, Advocate

Vs

1. Union Territory of Jammu & Kashmir, through Principal Secretary,

Home Department, J&K Govt., Civil Sectt., Srinagar/ Jammu.

2. District Magistrate, Pulwama.

3. Senior Superintendent of Police, Pulwama.

4. Superintendent Central Jail Kotbhalwal Jammu.

.…. Respondent(s)

Through: Mr. Zahid Noor, GA

Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

JUDGMENT

1. Heard the learned counsel for both sides. Perused the

writ pleadings and the record therewith and also the detention

record.

2. The petitioner, who is under preventive detention

custody, has come forward with the present writ petition filed 2024:JKLHC-SGR:117

2 WP(Crl) No. 275/2023

through his father – Ab. Gani Dar for seeking a writ of habeas

corpus so as to earn his release from the preventive detention

custody which the petitioner all eges to be illegal and

unconstitutional. This writ petition came to be filed on

13.07.2023.

3. The respondent No. 2 – District Magistrate, Pulwama

directed the preventive detention of the petitioner by passing an

order No. 36/DMP/PSA/23 dated 23.06.2023 dire cting detention

and detainment of the petitioner holding his alleged activities

being prejudicial to the security of the State being amenable for

preventive detention under section 8 of the Jammu & Kashmir

Public Safety Act, 1978.

4. The respondent No. 2 – District Magistrate, Pulwama

came to pass the aforesaid preventive detention order against the

petitioner upon being approached by the respondent No. 3- Sr.

Superintendent of Police (SSP), Pulwama with a dossier submitted

vide letter No. CS/PSA/DPO/23/83 -86 dated 15.06.2023

purportedly bearing the material on the basis of which petitioner’s

preventive detention was solicited and came to be granted by the

respondent No. 2 – District Magistrate, Pulwama.

5. In the grounds of detention, the petitioner is referred to

be a 22 years old person having done his B. Sc. in the year 2022 2024:JKLHC-SGR:117

3 WP(Crl) No. 275/2023

and preparing for an entrance examination for Master’s Degree in

Geology subject. The petitioner is alleged to have come in contact

with some prominent OGWs of banned terrorist outfits of

Rajpora-Pulwama areas under whose influence the petitioner is

alleged to have agreed to work of Jeish -e-Muhammad (JeM)

terrorist outfit as its OGW under which role the petitioner is

alleged to have been indulging in providing assistance at all

conceivable angles to the terrorists operating in the area who brief

the petitioner about the plans and targets of the JeM terrorist

outfit and the working of other OGWs. The petitioner is alleged to

be a fundamentalist in nature having provided all logistic support

to the terrorist operating in the area, providing information about

the movement of security forces to the terrorist of JeM operating

in the area and thereby becoming instrumental in promoting

terrorism in the area and being a cause for keeping terrorism

alive and surviving in the area which otherwise would have been

extinguished.

6. The petitioner is alleged to have been in alliance with

Pak handlers Yousuf Blouch R/o Pakistan and also a JeM

terrorist Ashaq Nengroo R/o Hanjan Bala, Rajpora Pulwama

operating from Pak through various social media networking

apps. The petitioner is alleged to have been getting instructions

from his Pak handlers through different means of communication 2024:JKLHC-SGR:117

4 WP(Crl) No. 275/2023

and then pass it on to the next for the nefarious plans. The

petitioner is alleged to be a member of LeT terrorist outfit.

7. With this background the petitioner is alleged to have

been even booked and bound down under section 107/151 Cr.PC

for maintaining a good behavior but even that not deterring him

from allegedly indulging in his objectionable mode of activities

thereby leaving no other option for the District Police as well for

the District Magistrate, Pulwama but to order the preventive

detention of the petitioner being a case whose personal liberty is

prejudicial to the security of the State.

8. The petitioner has challenged his preventive detention

and captivity by outrightly terming it as illegal, misconceived,

frivolous and baseless without any factual basis whatsoever.

9. This Court has no iota of doubt as to the fact that the

respondent No. 3 - Sr. Superintendent of Police (SSP), Pulwama

and the respondent No. 2 – District Magistrate, Pulwama have

resorted to exercise of jurisdiction under the Jammu & Kashmir

Public Safety Act, 1978, taking it as a matter of plaything, which

is oozing out from the very tone and tenor of the so-called

grounds of detention which are nothing but emptied verbosity

having nothing in the name of contents therein for the petitioner

to understand as to by reference to which particular act or event 2024:JKLHC-SGR:117

5 WP(Crl) No. 275/2023

referable to him he has been so profiled by the respondent No. 2 –

District Magistrate, Pulwama as if the petitioner was himself a

live terrorist having landed in the hands of the District Police

Pulwama thereby divulging all the details of his alleged misdeeds

wherefrom the respondent No. 3 – Sr. Superintendent of Police

(SSP), Pulwama and the respondent No. 2 – District Magistrate,

Pulwama were able to draw out so alarming reference and profile

against the petitioner.

10. If the alleged antecedents of the petitioner was so

disturbing and alarming, as are made to sound in the grounds of

detention, then surely those would not have been found fit only

for a proceeding under section 107/151 Cr.PC against the

petitioner and that too about which nothing has been stated and

referred to by the respondent No. 2 – District Magistrate,

Pulwama as to at whose instance the proceedings under section

107/151 Cr.PC came to be so initiated and what is the final order

of which Executive Magistrate passed against the petitioner and

how the bond if any executed by the petitioner and his surety

same came to be breached by them by allegedly re-engaging in

the alleged course of activities so as to warrant visitation of

preventive detention order against him. 2024:JKLHC-SGR:117

6 WP(Crl) No. 275/2023

11. This Court cannot escape notice of the fact that the

petitioner was a student pursuing his dream for higher education

which came to be derailed by his preventive detention carried out

just on baseless, frivolous and sensationalizing profiling of the

petitioner. This Court is left wondering from the reading of the

grounds of detention as to what was in the name of the fact/s

cited in the grounds of detention by the respondent No. 2 –

District Magistrate, Pulwama to form a basis to draw the

conclusion about the petitioner being a person so profiled in the

grounds of detention.

12. Thus, this preventive detention of the petitioner is

nothing but a gross misuse and abuse of jurisdiction under the

J&K Public Safety Act, 1978 at the end of the respondent No. 3 –

Sr. Superintendent of Police (SSP), Pulwama as well as the

respondent No. 2 – District Magistrate, Pulwama which warrants

quashment of the petitioner’s preventive detention by being held

as illegal per-se entitling him to compensation.

13. In addition, the petitioner’s preventive detention is

legally flawed on account of the fact that as the preventive

detention order of the petitioner recites the fact that the personal

liberty of the petitioner is prejudicial to the security of the State

being one of the statutory basis for subjecting a person to suffer 2024:JKLHC-SGR:117

7 WP(Crl) No. 275/2023

preventive detention under section 8 of the Jammu & Kashmir

Public Safety Act, 1978.

14. A perusal of the Jammu & Kashmir Public Safety Act,

1978 as it has come to be in its amended form post the Jammu &

Kashmir Re-Organization Act, 2019 would show that “security of

the State” ceased to be a statutory ground for subjecting a person

to suffer loss of personal liberty by a mode of preventive

detention. State of Jammu & Kashmir as a political entity came to

be put to an end by the J&K Reorganization Act, 2019 resulting

in creation of two Union Territories i.e. Union Territory of Jammu

& Kashmir and Union Territory of Ladakh. Accordingly, section 8

of the Jammu & Kashmir Public Safety Act, 1978 came to be

correspondingly amended in exercise of powers under the J&K

Re-Organization Act, 2019 when by virtue of S.O. 1229(E) of 2020

dated 31.03.2020 issued under the J&K Reorganization

(Adaptation of State Laws) Order, 2020 the “Security of the State”

under section 8(1)(a)(i) came to be substituted by the statutory

ground of “security of the Union Territory of Jammu & Kashmir”

meaning thereby if any person is intended to be detained under

section 8(1)(a)(i) holding his activities prejudicial to the security of

the UT of Jammu & Kashmir then there is no occasion for a

District Magistrate/Divisional Commissioner or even for the Govt.

of UT of Jammu & Kashmir to employ the expression “security of 2024:JKLHC-SGR:117

8 WP(Crl) No. 275/2023

the State” as a ground of preventive detention in a preventive

detention order and, therefore, an order so passed with the said

expression “Security of the State” being retained as it technically

disqualifies to be a valid order of preventive detention against a

detenue.

15. The reason for this disqualification is obvious and that

is the J&K Public Safety Act, 1978 is a preventive detention

jurisdiction the exercise of which is hedged in procedural

safeguards for the sake of benefit of society as well as that of a

prospective detenue. Therefore, there cannot be any deviation

from following the letters of any given preventive detention law so

as to serve the spirit of said law.

16. In the present case, when the petitioner came to be read

over the order of detention, the petitioner was made to

understand that he was being detained in order to prevent him

from acting in a manner prejudicial to the security of the State

obviously of meaning State of Jammu & Kashmir. State of

Jammu & Kashmir has ceased to be an entity for the Govt. as

well as for the citizens of the Union Territory of Jammu &

Kashmir and it cannot lie at the disposal of any side to still say

and understand that the State of Jammu & Kashmir is in 2024:JKLHC-SGR:117

9 WP(Crl) No. 275/2023

existence for whose safety and security detention order under

J&K Public Safety Act, 1978 can be passed.

17. The petitioner in his writ petition has claimed

compensation for illegal deprivation of his fundamental right to

personal liberty by being subjected to unwarranted and

misconceived preventive detention at the end of the respondents.

This Court considers and reckons that this is a fit case to award

compensation of an amount of Rs. 2 lac payable in faovur of the

petitioner by the respondents for invasion of fundamental right of

the petitioner of his personal liberty as guaranteed under article

21 of the Constitution of India. A fundamental right under the

Constitution of India is a guaranteed right to a citizen of India

and, therefore, its invasion and breach in an unlawful manner

and on frivolous/sham basis cannot be a pass -over for a

constitutional court whenever coming across with a case

registered by an aggrieved citizen complaining about the injury

caused to his/her fundamental right by a wrongful action at the

end of the Govt./its authorities/officials. Release from illegal

custody no doubt restores the fundamental right to personal

liberty to an aggrieved person but it does earn him any succor for

the injury received by him and to his person and for that the only

remedy and relief that can be extended by a constitutional court

is a compensation under public law remedy which in the present 2024:JKLHC-SGR:117

10 WP(Crl) No. 275/2023

case the petitioner is entitled to have from this Court and that is

why this Court is awarding compensation of an amount of Rs. 2

lacs in favour of the petitioner payable by the respondents.

18. In view of the aforesaid facts and circumstances, the

preventive detention of the petitioner is held to be illegal. The

preventive detention order No.36/DMP/PSA/23 dated 23.06.2023

passed by the respondent No. 2- District Magistrate, Pulwama

read with approval and confirmation order passed by the Govt. of

UT of Jammu & Kashmir are hereby quashed. The petitioner is

directed to be released from his custody from the concerned Jail

with immediate effect for which the Superintendent of the

concerned Jail as well as the respondent No. 2 District

Magistrate, Pulwama to ensure that the petitioner does not suffer

delay in earning his release from the Jail where he is being

detained.

19. Disposed of accordingly.

20. Detention record, if any, is returned back.

(RAHUL BHARTI)

JUDGE

SRINAGAR

02.04.2024

Muneesh

Whether the order is speaking : Yes

Whether the order is reportable: Yes 2024:JKLHC-SGR:117