HCP 82/2024 Page | 1

Serial No. 07

Regular cause list

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

…

HCP No. 82/2024

Reserved on: 10.04.2025

Pronounced on: 25.04.2025

Majid Nisar Najar

……...Petitioner(s)

Through:

Mr. S. T. Hussain, Sr. Advocate with

Ms. Nida Nazir, Adv.

Versus

UT of J&K and Ors.

……Respondent(s)

Through:

Mr. Zahid Qais Noor, GA

CORAM:

HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

JUDGMENT

1. Challenge is made and quashment of the order bearing No.

01/DMK/PSA/2024 dated 07.03.2024, hereinafter for short as

“impugned order” is sought by the petitioner Surat Jan sister of

Majid Nisar Najar S/o Nisar Ahmad Najar R/o Chugalpora

Manzgam Tehsil D.H. Pora District Kulgam, hereinafter for short as

“detenue”, on the grounds taken in the memo of petition.

BRIEF FACTS:

2. The petitioner is pleading that the detenue was arrested in the month

of August, 2021 after having been illegally implicated in case FIR

No. 53/2021 of P/S Kulgam for the commission of offences

punishable in terms of Sections 13(1), 18, 20, 23, 39 Unlawful

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Activities Prevention Act, wherein the detenue, during trial before

the competent court of jurisdiction, was admitted to interim bail on

24

th

November, 2023, and in compliance whereof was released from

custody.

3. The petitioner challenges the impugned order inter alia on the

grounds that the grounds of detention have no nexus with the

detenue as the police has fabricated the involvement of the detenue;

the impugned order appears to have been issued against the wrong

person as detenue has never associated himself with any such

individual or an organization as referred in the grounds of detention;

the allegations made in the grounds of detention are vague and non-

existent and no prudent man can make a representation against such

allegations; the last alleged activity alleged against the detenue is

shown to have taken place in the year 2021 and no subsequent

activity is alleged against the detenue, therefore, there is no

proximity or live link between the allegations and the activities of

the detenue; the impugned order is passed in disregard of the order

of interim bail dated 24.11.2023 passed by the learned Special Judge

Designated NIA Court for Shopian & Kulgam, Kulgam; the

Detaining Authority has not applied its mind to the facts of the case

and has relied upon the police dossier blindly; the detenue was not

furnished the requisite material to enable him to move a

representation against the impugned order so that the apprehensions

of the respondents are dispelled, however, the petitioner on the basis

of few documents as provided to her moved a representation to the

respondent No. 2 which was not considered in due course of law.

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4. Upon notice the respondents appeared and filed their counter

affidavit inter alia stating therein that the procedural safeguards as

provided by the provisions of the Public Safety Act have been

followed in letter and spirit and with due application of mind. It is

stated that the detenue had developed contacts with militants, started

to work himself as an OGW and was involved in several subversive

and unlawful activities and has been named in case FIR No. 53/2021

of P/S Kulgam under Section 13(1), 18, 20, 23, 39 ULAP Act. It is

further stated in the counter affidavit that the activities of the

detenue were found prejudicial to the security, sovereignty and

integrity of the State, therefore, was detained under preventive

detention. The entire material in the shape of detention order,

grounds of detention and other documents were furnished to the

detenue which were read over and explained to the detenue in the

language that he understood.

5. I have heard learned counsel for the parties, perused the material

made available including the detention records and considered the

submissions made.

6. The admitted position of the case is that the detenue has been

detained under the provisions of preventive detention after having

been found involved in case FIR No. 53/2021 for the Commission

of Offences punishable in terms of Sections 13(1), 18, 20, 23, 39 of

P/S Kulgam. It is also admitted that the detenue was in custody in

connection with his involvement in the aforesaid case and had been

admitted to interim bail by the competent court of jurisdiction in

terms of order dated 24.11.2023.

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7. It becomes quite axiomatic that the detenue was in custody for over

a period of two years till he was granted bail i.e., from the date of

arrest till 24.11.2023 and subsequently also from the date of release

on bail till the issuance of the impugned order i.e., 24.11.2023 to

07.03.2024 and in this way was very much available to the

respondents to be detained under the provisions of preventive

detention, if they so required, however, the respondents did not do

so instead they waited quite long to issue the impugned order

without any justification whatsoever for such delayed issuance of

the impugned order.

8. Furthermore, the respondents have not disputed that the detenue has

been granted bail and in compliance whereof was set at large. The

respondents, as such, have passed the impugned order in disregard

of the bail order passed by the competent court of jurisdiction. The

respondents nowhere in the detention order or in the grounds of

detention or even for that matter anywhere in the detention records

make even a whisper about such enlargement of the detenue on bail

which goes on to suggest that the detaining authority was either in

not in know of the fact that detenue has been enlarged on bail or it

had issued the impugned order in derogation thereof.

9. The Apex Court in case titled “Joyi Kitty Joseph vs. Union of India

& Ors.” reported in 2025 LiveLaw (SC) 298, while observing that

the preventive detention issued in disregard of the bail orders is

unsustainable in law, has laid down in paragraphs 21 and 22 as

under;

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21. “The criminal prosecution launched and the preventive

detention ordered are on the very same allegations of organised

smuggling activities, through a network set up, revealed on

successive raids carried on at various locations, on specific

information received, leading to recovery of huge cache of

contraband. When bail was granted by the jurisdictional Court, that

too on conditions, the detaining authority ought to have examined

whether they were sufficient to curb the evil of further indulgence in

identical activities; which is very basis of the preventive detention

ordered. The detention order being silent on that aspect, we

interfere with the detention order only on the ground of the

detaining authority having not looked into the conditions imposed by

the Magistrate while granting bail for the very same offence; the

allegations in which also have led to the preventive detention,

assailed herein, to enter a satisfaction as to whether those

conditions are sufficient or not to restrain the detenue from

indulging in further like activities of smuggling.

22. We, hence, allow the appeal and set aside the order of

detention. The detenue shall be released forthwith, if still in

custody.”

10. The Apex Court in yet another case titled “Sushanta Kumar Banik

vs. State of Tripura & Ors.” reported in 2022 LiveLaw (SC) 813

has, while deprecating the practice of disregard given to the bail

orders passed in respect of the individuals detained under preventive

laws, held in paragraph No. 22 as under;

22. As noted above, in the case on hand, in both the cases relied

upon by the detaining authority for the purpose of preventively

detaining the appellant herein, the appellant was already ordered to

be released on bail by the concerned Special Court. Indisputably,

we do not find any reference of this fact in the proposal forwarded

by the Superintendent of Police, West Tripura District while

requesting to process the order of detention. The reason for laying

much stress on this aspect of the matter is the fact that the appellant

though arrested in connection with the offence under the NDPS

ACT, 1985, the Special Court, Tripura though fit to release the

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appellant on bail despite the rigours of Section 37 of the NDPS Act,

1985. Section 37 of the NDPS Act, 1985 reads thus:

“Section 37. Offences to be cognizable and nonbailable:- (1)

Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974)

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for offences

under section 19 or section 24 or section 27A and also for

offences involving commercial quantity shall be released on

bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to

oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the

court is satisfied that there are reasonable grounds for

believing that he is not guilty of such offence and that

he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of

sub-section (1) are in addition to the limitations under the Code of

Criminal Procedure, 1973 (2 of 1974) or any other law for the time

being in force, on granting of bail.”

11. In the above background the court does not feel it necessary to go

into other grounds raised against the impugned order like the non-

furnishing of requisite material to the detenue or prejudicing him by

not affording him an opportunity to represent against his detention

as the petition succeeds on the ground of non application of mind

only.

12. Viewed thus, the petition succeeds, it is allowed as such, and the

impugned order bearing No. 01/DMK/PSA/2024 dated 07.03.2024

in consequence thereof is quashed. The detenue namely Majid Nisar

Najar S/o Nisar Ahmad Najar R/o Chugalpora Manzgam Tehsil

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D.H. Pora District Kulgam is directed to be released from the

preventive detention forthwith.

13. Registry is directed to return the detention records to the learned

counsel for the respondents against receipt.

14. Disposed of.

(MOKSHA KHAJURIA KAZMI)

JUDGE

Srinagar

25.04.2025

Sakeena, PS

Whether the judgment is reportable: Yes/No

Whether the judgment is speaking: Yes/No