HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

HCP No.282/2024

Reserved On:11

th

of April, 2025.

Pronounced On: 5

th

of May, 2025.

Mohammad Ashraf Bhat

… Petitioner(s)

Through: -

Mr R. A. Jan, Senior Advocate with

Mr Adil Mushtaq, Advocate;

Mr Z. A. Qurashi, Senior Advocate with

Ms RehanaFayaz, Advocate; and

Mr Mohammad Younis, Advocate.

V/s

Union Territory of J&K and Ors.

… Respondent(s)

Through: -

Mr Jehangir Ahmad Dar, Government Advocate.

CORAM:

Hon’ble Mr Justice Rahul Bharti, Judge.

(JUDGMENT)

01. Heard learned counsel for the parties.

02. Perused the pleadings of the writ petition and the

record therewith. Also perused the record relating to the

preventive detention of the petitioner as produced by the

respondents.

03. “The history of liberty has largely been the history of

the observance of procedural safegurads” is a famous quote of

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Justice Felix Frankfurter, Judge Supreme Court of United States

with a perpetual meaning and pregnant with a message that

personal liberty of a citizen/subject is a ‘Handle with Care and

Caution’ tag in case it is intended to be curtailed on preventive

side intent and end of law.

04. The petitioner, who is a practicising advocate aged 71

years, has come to suffer preventive detention custody in terms of

an order No. DMS/PSA/18/2024 dated 16

th

of July, 2024 passed

by the respondent No.2-District Magistrate, Srinagar acting in

exercise of power under section 8 of the Jammu & Kashmir Public

Safety Act, 1978 by reckoning the petitioner’s personal liberty and

his alleged reported activities to be prejudicial to the maintenance

of security of the State. In terms of said order, the respondent

No.2-District Magistrate, Srinagar directed the petitioner’s

detention and consequent detainment in the District Jail, Kathua.

05. The petitioner was taken into preventive custody when

the detention warrant came to be executed on 17

th

of July, 2024 by

PSI-Mubarak Ahmad Shah, Sub-Inspector Police Station, Sadar,

Srinagar.

06. The institution of the present writ petition, seeking

setting aside of his preventive detention custody by quashing of

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preventive detention order, came to take place on 12

th

of August,

2024 by the petitioner acting through his wife-Mst. Asmat

Hagroo.

07. A case for seeking preventive detention of the

petitioner under the Jammu & Kashmir Public Safety Act, 1978

came to be initiated by the Senior Superintendent of Police (SSP),

Srinagar who, vide his letter No. LGL/Det-PSA/2024/14353-55

dated 15

th

of July, 2024, submitted a dossier to the respondent

No.2-District Magistrate, Srinagar thereby reporting the alleged

activities of the petitioner, being in state of freedom of movement

and personal liberty, to be prejudicial to the maintenance of the

security of the State.

08. Text and context of said dossier needs to be reproduced

as it is, on the basis of which the Senior Superintendent of Police

(SSP), Srinagar solicited slapping of preventive detention upon

the petitioner. The dossier reads as under:

“Name: Mohammad Ashraf Bhat.

Parentage: Late Ghulam Hassan Bhat.

Residence: Mughal Mohalla Chattabal A/P Rawalpora

near Boys Higher Secondary Mohalla

Rawalpora.

Category: General Secretary of Kashmir High Court

Bar Association.

Age: 70 years.

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The subject was born at Mughal Mohalla Chattabal

Srinagar in the year 1953 and is presently putting up

atRawalpora Srinagar. The subject graduated in law. Soon after

the completion of Law degree, subsequently subject started

practicing as lawyer as a regular member of High Court Bar

Association Kashmir. The subject came to be nominated as

General Secretary of high Court Kashmir Bar Association,

Srinagar, having affiliated with APHC-G. The subject is

known for his secessionist ideology and its anti-national

propagation among like-minded lawyers and general masses.

The subject in the capacity of General Secretary of High

Court Bar Association (HCBA) and has been instrumental in

reviving of HCBA and to provide a platform to secessionist

and terrorists. It was provided in adopted constitution of

Kashmir High Court Bar Association to provide support to the

terrorist movement till objective of secessionist of UT of J&K

from Union of India is achieved. The subject is still continuing

his activities for propagating the erstwhile adopted constitution

of JKHCBA to support the terrorist movement to achieve

unlawful desired object of secessionism under the influence of

Advocate Abdul Qayoom, a staunch supporter of terrorist and

secessionism.

The subject due to his hardcore secessionist ideology

was very close to secessionist organizations and aided

secessionist elements including Late Syed Ali Shah Geelani to

formulate protest calendars during unrest of 2008, 2010 and

2016. The subject has also remained associated with the

Peoples League and was arrested in the year 1989. He was

tasked by APHC (G) to defend the cases of secessionist and

terrorists sub-judice before different Courts which made him

earn a prominent position within the secessionist rank. Subject

is responsible for organizing anti-national seminars, rallies

formulating secessionists programs aimed with to create anti-

national atmosphere in the valley.

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The subject post-abrogation of Article 370 in

consultation with the mentors across the border was advocating

to led many agitations and was hell bent upon to create a

situation which could jeopardize public order of UT of J&K

was detained under PSA in year 2019. However, after his

release from the detention he did not mend his ways and

continued propagating secessionism and terrorist.

In 2002, subject had gone to Pakistan with 03 other

Kashmir Advocates namely Ghulam Nabi Shaheen, G. N.

Hagroo and Mohd. Amin Bhat to attend a seminar on “Peace

through Law” organized by Pakistan Bar Association at

Islamabad. Reportedly, during their meeting with General

Parvaiz Musharaff, they were warned to work strictly as per

ISI directions and not to utter a word about peace in Kashmir.

Since them, the subject has loyally toed the Pakistan line in

Kashmir. He has remained staunch support separatism in

Kashmir. The brother of the subject namely Advocate

Mohamad Younis S/o Ghulam Hassan Bhat R/o Mughal

MohallaChattabal is a released locally trained terrorist of the

proscribed outfit Hizbul Mujahideen who was arrested by

Security Forces in 1991 and released after two years of

detention.

The subject remained active in mobilizing anti-national

protests against the execution of death penalty inflicted by

Hon’ble Court of Law against the hanging of Afzal Guru and

delivered sermons that he was hanged without affording him

the chance of a fair trial exposed Indian Judicial System as

well as Kashmir’s Pro-Indian Camp.

There are credible and technical reports received with

respect to the subject from various agencies which are

suggestive of the fact that the subject has been facilitating

terrorists/OGWs by way of legal recourse to get out of the

ambit of law and subject has visited number of jails all over

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India and had assured terrorists/secessionist lodged there that

he will facilitate the release of such terrorists, this was done

only to rise the circle of terrorists/secessionists groups. The

subject being an Advocate practicing in High Court and

District Court Srinagar is providing his services as Advocate to

Terrorists, OWGs (accused persons) involved in UAPA cases.

The subject has always trying to find ways and means to

devise programs/seminars/calendars which have been and are

direct threat to the security of State in the past, as well because

the subject is holding discreet meet with his likeminded

lawyers and masses to review the secessionism in the valley

District Srinagar particularly. The subject as per the

credible/confidential sources and technical inputs is direct

threat to security of state at present and assessing his past

activities. The subject, being a staunch antinational element

cannot see peace returning in UT of J&K and as such always in

search of opportunity to mobilize the ways and means having

bearing on security of State and as such has been found to have

secretly devised programs for creating large scale violence

which in all possibilities will have bearing on the security of

State.

The subject whose audacity can be gauged from the

activities he has carried out in past and is trying to revive is a

potential threat to the security of State, if the subject is allowed

to remain at large, there are more than compelling reasons that

once the subject, is allowed to remain at large at this point of

time, he is going to indulge in activities which are prejudicial

to security of State.

Therefore, taking a wholesome view of the likely impact

of the activities of the subject upon the overall scenario, if the

subject gets liberty to move freely at this point of time, there is

very chance that the subject will devise a plan with his

likeminded advocates and masses which in all possibilities will

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be a threat to the security of State. In order to safety of security

of State and keeping the compelling circumstances mentioned

above, the detention of subject under provisions of PSA 1978,

for maximum period at this stage has become imperative.

It is as such requested, that a warrant of detention under

provisions of J&K Public Safety Act 1978 to prevent him from

acting in any manner prejudicial to Security of State may

kindly be issued against subject and sent to this office for early

execution.”

09. Acting upon the said dossier, the respondent No.2-

District Magistrate, Srinagar formulated the grounds of detention

on the purported basis whereof the respondent No.2-District

Magistrate Srinagar came to hold that the petitioner’s personal

liberty warranted to be curtailed in order to prevent him from

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

10. The respondent No.2-District Magistrate, Srinagar,

vide communication No. DMS/PSA/JUD/1003-1006/2024 dated

16

th

of July, 2024, addressed to the petitioner meant to notify him

about the passing of detention order against him and his

impending detention to be carried out pursuant thereto and further

registering a reminder to the petitioner about his option to exercise

his right to make a representation against the order of detention be

it to the respondent No.2-District Magistrate, Srinagar and/ or to

the Government as may be desired by the petitioner.

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11. Simultaneously, the respondent No.2-District

Magistrate, Srinagar also notified the Principal Secretary to

Government, Home Department, Union Territory of Jammu &

Kashmir vide letter No. DMS/PSA/JUD/1007-1008/2024 dated

16

th

of July, 2024 about passing of detention order against the

petitioner by the respondent No.2-District Magistrate, Srinagar.

12. The actual detention of the petitioner taking place on

17

th

of July, 2024 was accompanied with handing over of eight

(08) leaves compilation to the petitioner by the Superintendent of

Police, District Jail, Kathua attended with the grounds of detention

being read over and explained to the petitioner.

13. Upon lodgment of the petitioner in the District Jail,

Kathua, the Superintendent, District Jail, Kathua, vide his

communication No. DJK/DS/4333-38 dated 18

th

of July, 2024,

apprised the Financial Commissioner (Additional Chief

Secretary), Government of Union Territory of J&K, Home

Department about the detention of the petitioner having been

carried out and his detainment in the District Jail, Kathua having

taken place.

14. Upon execution of detention warrant resulting in taking

into custody the person of the petitioner, the Station House Officer

(SHO), Police Station Sadar, vide his letter No. SDR/PSA/24/04

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dated 19

th

of July, 2024, apprised the Senior Superintendent of

Police (SSP), Srinagar about the fact of the petitioner being taken

into preventive detention custody.

15. Senior Superintendent of Police (SSP), Srinagar at his

end, vide his letter No. LGL/PSA-3717/24/14828-31 dated 20

th

of

July, 2024, apprised the Principal Secretary to Government, Home

Department, Union Territory of Jammu & Kashmir about the

execution of the detention warrant upon the petitioner.

16. The preventive detention order No. DMS/PSA/80/2024

dated 16

th

of July, 2024 came to be approved by the Home

Department, Government of Union Territory of Jammu &

Kashmir vide Government Order No. Home/PB-V/1503 of 2024

dated 22

nd

of July, 2024 in terms whereof the determination of

period of detention of the petitioner under the preventive detention

custody was made subject to the receipt of opinion of the

Advisory Board.

17. The petitioner, acting through his wife, submitted a

written representation dated 24

th

of July, 2024 addressed to the

Chairman, Advisory Board thereby detailing the facts and

circumstances on the basis of which the revocation of the

detention order was solicited.

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18. In addition, the petitioner, through his wife, also

submitted written representation dated 24

th

of July, 2024 to the

respondent No.2-District Magistrate, Srinagar duly received in the

office of District Magistrate, Srinagar in terms whereof a plea was

made for revocation of the preventive detention against the

petitioner.

19. The preventive detention file of the petitioner is said to

have been sent and submitted for its opinion to the Advisory

Board under the Jammu & Kashmir Public Safety Act, 1978 on

24

th

of July, 2024.

20. The Deputy Secretary to Government, Home

Department, Union Territory of Jammu & Kashmir, vide his letter

No. Home/PB-V/417-2024(7527085) dated 26

th

of July, 2024,

addressed to the Chairman, Advisory Board also forwarded the

written representation of the petitioner for consideration.

21. In order to avail his right of representation against his

preventive detention in an effective manner, the petitioner, vide a

handwritten application dated 1

st

of August, 2024 addressed to

Principal Secretary to Government, Home Department, Union

Territory of Jammu & Kashmir, asked for personal hearing before

the Advisory Board.

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22. The petitioner being in state of custody handed over his

handwritten application dated 1

st

of August, 2024 to the

Superintendent, District Jail, Kathua obviously for the purpose of

its placement before the Principal Secretary to Government, Home

Department, Union Territory of Jammu & Kashmir.

23. Superintendent, District Jail, Kathua, acting at his end

vide letter No. DJK/MH/4720 dated 2

nd

of August, 2024

addressed to the Director General Prisons, Jammu & Kashmir,

Srinagar, forwarded said handwritten application of the petitioner

seeking right of personal hearing before the Advisory Board.

24. Meanwhile, the Advisory Board under the Jammu &

Kashmir Public Safety Act, 1978 came to submit its opinion

report on file No. Home/PB-V/417/2014 dated 5

th

of August, 2024

in terms whereof the preventive detention of the petitioner was

held to be based upon sufficient grounds.

25. The Advisory Board in its opinion report came to refer

about the fact of the written representation of the petitioner being

considered but found to be without any substance. The Advisory

Board in express terms came to observe that the petitioner had not

registered any request for personal hearing.

26. Staff Officer to the Director General Prisons, Jammu &

Kashmir, Srinagar, vide a letter No. DS/PSA correspondence SJ

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Reasi/2024 (7423072) 3764 dated 6

th

of August, 2024 addressed

to the Principal Secretary to Government, Home Department,

Union Territory of Jammu & Kashmir forwarded the letter No.

DJK/MH/4270 dated 2

nd

of August, 2024 of the Superintendent,

District Jail, Kathua along with handwritten application dated 1

st

of August, 2024 of the petitioner seeking personal hearing before

the Advisory Board.

27. Thereafter, the Deputy Secretary to Government,

Home Department, Union Territory of Jammu & Kashmir, vide

letter No. Home/PB-V/417/2024/7527085 dated 8

th

of August,

2024 addressed to the respondent No.2-District Magistrate,

Srinagar, conveyed the fact of rejection of petitioner’s

representation. Copy of this communication was also meant to be

forwarded to the Superintendent, District Jail, Kathua for the sake

of conveying to the petitioner about the rejection of his

representation against his preventive detention.

28. On the other hand, following the Advisory Board’s

opinion confirming the petitioner’s preventive detention,

confirmation of the petitioner’s detention came to be ordered vide

Government Order No. Home/PB-V/1638 of 2024 dated 8

th

of

August, 2024 and thereby settling the period of the petitioner’s

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detention custody at the first instance for six months to be kept

detained in District Jail, Kathua.

29. The Deputy Secretary to Government, Home

Department, Union Territory of Jammu & Kashmir, vide his letter

No. Home/PB-V/417/2024(7527085) dated 20

th

of August, 2024

addressed to the Additional Director General of Police, CID, J&K,

forwarded communication No. DS/PSA correspondence SJ

Reasi/2024(7423072) 3764 dated 6

th

of August, 2024 of the Staff

Officer to Director General, Prisons, Jammu &Kashmir.

30. The respondent No.2-District Magistrate, Srinagar vide

his letter No. DMS/JUD/Misc/2024/1785 dated 11

th

of October,

2024 addressed to the Principal Secretary to Government, Home

Department, Union Territory of Jammu & Kashmir, forwarded the

written representation of the petitioner seeking revocation of his

detention which was submitted by the respondent No.2-District

Magistrate, Srinagar.

31. The Deputy Secretary to Government, H ome

Department, Union Territory of Jammu & Kashmir, vide his letter

No. Home/PB-V/417-2024-7527085 dated 16

th

of October, 2024

addressed to the respondent No.2-District Magistrate, Srinagar,

apprised him about the fact that the petitioner’s written

representation against his preventive detention stood already

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rejected as conveyed vide letter No. Home/PB -

V/417/2024/7527085 dated 8

th

of August, 2024.

32. From the office of Additional Director General of

Police, CID, J&K, Senior Superintendent of Police (A), vide letter

No. CID/SSP(A)/BR/M-03/2019/SGR/14278 dated 29

th

of

October, 2024 addressed to Principal Secretary to Government,

Home Department, Union Territory of Jammu & Kashmir,

recommended the rejection of the petitioner’s representation,

whereafter the Deputy Secretary to Government, Home

Department, Union Territory of Jammu &Kashmir, vide his letter

No. Home/PB-V/417/2024/7527085 dated 28

th

of October, 2024

addressed to respondent No.2-District Magistrate, Srinagar,

conveyed the fact of rejection of the petitioner’s representation.

33. The Additional District Magistrate, Srinagar vide his

letter No. DMS/JUD/Misc/2024/2203-2204 dated 26

th

of

November, 2024 apprised the Senior Superintendent of Police

(SSP), Srinagar about the disposal of the petitioner’s

representation.

34. Vide Government Order No. Home/PB-V/99 of 2025

dated 14

th

of January, 2025, the petitioner’s period of detention

came to be extended by period of another six months w.e.f. 17

th

of

January, 2025 to 16

th

of July, 2025 which period is still in

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currency and in the course of which the adjudication of this writ

petition has come up.

35. The petitioner in his writ petition has assailed his

preventive detention custody on the grounds as set out in para 8

(A) to (J).

36. The petitioner challenges his preventive detention

being procured by suppression of facts at the end of the Senior

Superintendent of Police (SSP), Srinagar who is said to have

withheld true and full disclosure of facts of the petitioner’s

previous preventive detention ordered in year 2019 under the

Jammu & Kashmir Public Safety Act, 1978 resulting in its setting

aside and quashment by a judgment dated 16

th

of March, 2020 in

WP (Crl) No. 573/2019.

37. The petitioner has annexed copy of judgment dated 16

th

of March, 2020 along with his writ petition as Annexure-V page

Nos. 26 to 30. In the said writ petition, the Superintendent of

Police, Srinagar figured as respondent No.5 and was, thus, meant

to be fully cognizant of previous preventive detention of the

petitioner having taken place earlier in 2019 but consequently

getting quashed.

38. It is pleaded in the grounds of challenge that the second

time detention of the petitioner, now being under challenge, is

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premised on the same basis as was the preventive detention

effected in the year 2019 vide Order No. DMS/PSA/129/2019

dated 26

th

of September, 2019.

39. It is pleaded in the grounds of challenge to his

preventive detention custody that from 2019 onwards, there is no

activity whatsoever reflected and reported in the dossier by the

Senior Superintendent of Police (SSP), Srinagar on the basis of

which the present preventive detention custody of the petitioner

could come to take place and, therefore, second time preventive

detention of the petitioner is resting upon the same grounds

without being first disclosed and briefed to the respondent No.2-

District Magistrate, Srinagar about first detention order.

40. It is further pleaded that once the preventive detention

of the petitioner effected in the year 2019 came to be quashed by

judgment dated 16

th

of March, 2020 passed by this Court which

remained unchallenged, all the preceding references which led

upto passing of preventive detention order No.

DMS/PSA/129/2019 dated 26

th

of September, 2019 against the

petitioner were to be of no worth even for reference sake much

less for reliance sake but still in the dossier submitted by the

Senior Superintendent of Police (SSP), Srinagar against the

petitioner to the respondent No.2-District Magistrate, Srinagar,

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who thereupon formulated grounds of detention, all the self-same

references were borrowed and imported in the grounds of

detention on the basis of which the impugned second time

detention order came to be passed subjecting the petitioner to

suffer loss of personal liberty by the preventive detention mode.

41. The petitioner has also assailed his preventive

detention custody on the ground that his representation made

through his wife has remained unconsidered and un-responded.

42. In addition, though not pleaded in the writ petition but

came to be argued by the learned counsel for the petitioner that

petitioner’s request for personal hearing duly submitted by him in

terms of his handwritten application dated 1

st

of August, 2024

was made to go waste by the Jail Authorities and also by the

Home Department, Government of Union Territory of Jammu &

Kashmir which resulted in denying him personal hearing before

the Advisory Board in connection with consideration of his

written representation submitted to the Advisory Board seeking

revocation of his preventive detention.

43. The petitioner has relied upon the following judgments

to supplement his submissions in seeking quashment of his

preventive detention custody:

i. 1975 (II) SCC 4;

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ii. 1979 (V) SCC 559;

iii. 1980 (IV) SCC 544;

iv. 1987 (VII) SCC 22;

v. 1989 (IV) SCC 741;

vi. 2006 (IV) SCC 796;

vii. 2023 AIR SC 4273;

viii. 2023 JKJ (II) 394; and

ix. 2023 JKJ (VI) 77.

44. The petitioner has also agitated, as a ground of

challenge, the fact that the dossier submitted by the Senior

Superintendent of Police (SSP), Srinagar to the respondent No. 2-

District Magistrate, Srinagar was not provided to him and, as

such, the material on the basis of which the dossier was framed

was also not provided to him.

45. In the counter affidavit to the writ petition, the

respondents in general and respondent No.2-District Magistrate,

Srinagar in particular has come forward with preliminary

objections as well as parawise reply on the basis of which the

dismissal of the writ petition filed by the petitioner is being

sought.

46. In the preliminary objections, it is being stated that no

legal, fundamental or statutory right of the petitioner has been

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violated and, therefore, the writ petition merits outright rejection.

It is further objected by the answering respondents, with respect to

the maintainability of the writ petition, that the petitioner has not

approached the Court with clean hands and the contentions made

in the writ petition are baseless.

47. Continuing with their preliminary objections, the

respondents come forward with recitals as to the jurisdictional

basis of preventive detention jurisdiction and in that regard draw

reference from the judgments of the Hon’ble Supreme Court in the

cases of ‘Haradhan Saha v. State of West Bengal, 1975 (III)

SCC 198’; ‘The Secretary to Government, Public (Law and

Order-F) &Anr. v. Nabila &Anr.’, ‘2015 (XII) SCC 127; Debu

Mahato v. State, 1974 AIR (SC) 816’; and ‘Ashok Jumar v.

Delhi Administration and Ors., 1982 AIR (SC) 1143.’

48. In order to provide insulation to the preventive

detention of the petitioner as ordered by respondent No.2-District

Magistrate, Srinagar, the respondents in their reply have come

forward claiming that all the statutory requirements and

constitutional guarantees were fulfilled and complied with in

ordering and effecting the preventive detention of the petitioner

keeping in mind the very object of law of preventive detention.

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49. It is further asserted that the detention order and the

grounds in support thereof were not only made available to the

petitioner but also read over and explained to the petitioner

besides apprising him about his right of making a representation

against his preventive detention. Further, in order to salvage the

basis of preventive detention imposed upon the petitioner, the

respondents in their counter affidavit have come forward stating

that even if on one of the grounds of detention the preventive

detention of the petitioner is rendered questionable, the other

grounds can suffice and serve the purpose to lend validity to the

preventive detention of the petitioner.

50. On parawise reply side, the respondents have come up

with a novelty of the factual background narrative without

bothering to deal with the parawise reply of the assertions and

averments made in the writ petition filed by the petitioner.

51. This Court is at loss to discern the reluctance on the

part of the respondent No.2-District Magistrate, Srinagar in

coming forward with parawise reply in the counter affidavit to the

averments and assertions made in the writ petition by the

petitioner.

52. In the factual background as set out in the counter

affidavit, there is a very muted reference of one liner about the

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earlier preventive detention case of the petitioner dating back to

2019 and its outcome, and also as to how the petitioner came to be

apprised about the outcome of consideration of his written

representation made for seeking revocation of his preventive

detention.

53. There is nothing said or suggested in the counter

affidavit by the respondent No.2-District Magistrate, Srinagar as

to why the petitioner’s plea for seeking personal hearing before

the Advisory Board was made to suffer waste in the process of

official correspondence and, in the meanwhile, the Advisory

Board was let to opine on the preventive detention of the

petitioner without personal hearing accorded to the petitioner.

54. Upon consideration of all facts and circumstances with

respect to the case in hand drawn from the writ petition, the

documents therewith, the counter affidavit without any documents

therewith and the detention record produced, the preventive

detention of the petitioner is found to be seriously faulty and

flawed.

55. The first and foremost flaw is the stone like silence on

the part of the Senior Superintendent of Police (SSP), Srinagar

and also of the respondent No.2-District Magistrate, Srinagar in

putting out in full with respect to the petitioner’s preventive

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detention effected in the year 2019. The petitioner had earned

quashment of his first preventive detention custody through the

medium of a writ petition WP (Crl) No. 573/2019 in which the

Senior Superintendent of Police (SSP), Srinagar and the District

Magistrate, Srinagar figured as respondents No. 4 and 5. The

adjudication of said 2019 writ petition had taken place not in an

ex-parte manner for affording said two officers an excuse to plead

ignorance. First preventive detention of the petitioner was quashed

on merits. This Court is clueless to decipher as to why in his

dossier, the Senior Superintendent of Police (SSP), Srinagar

missed out in documenting in his dossier the details and dossier of

the petitioner’s preventive detention effected in the year 2019 and

its consequent quashment.

56. Likewise, the respondent No.2-District Magistrate,

Srinagar, if had acted with due diligence at his end, would have

come across with a fact from the records of his office that the

petitioner was subjected to preventive detention in the year 2019

which came to be set aside by the intervention of the High Court

of Jammu & Kashmir and Ladakh. This omission is too serious to

be taken casually much less by this Court as being the guardian of

the fundamental rights of a citizen of India which the petitioner

undoubtedly is.

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57. The preventive detention of the petitioner is further

flawed because of the petitioner being kept uninformed about the

fate of his written representation which was made not only to the

Advisory Board but also to the respondent No.2-District

Magistrate, Srinagar and to the Principal Secretary to

Government, Home Department, Union Territory of Jammu &

Kashmir. There is found no communication on the detention

record file of the petitioner, as produced from the respondents’

end, to confirm that the petitioner was duly notified with respect

to the rejection of his written representation against his preventive

detention.

58. In the present writ petition, the respondent No.3 is

Superintendent of Police, District Jail, Kathua. There is no counter

affidavit from his end nor is there any averment in the counter

affidavit filed by the respondent No.2-District Magistrate,

Srinagar by reference to the respondent No.3-Superintendent of

Police, District Jail, Kathua that the petitioner was duly notified

about the rejection of his written representation which was

otherwise conveyed to the respondent No.3.

59. These two grounds are self-sufficient by themselves to

render the preventive detention of the petitioner bad in the eyes of

law.

HCP No. 282/2024

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60. The exercise of preventive detention jurisdiction is a

double-edged sword which is unsparing both for the hand which

wields it and the hand which bears its blow. If mishandled by the

wielder of said sword, then the effect stays on the side of the

wielder whereas the relief passes on to the side of the person

aimed to suffer its blow, and which precisely is the situation in

hand before this Court in the context of the present case.

61. In the case of “Ayya @ Ayub Vs State of UP and

another,” (1989)1 SCC 374, the Hon’ble Supreme Court of India

has delved into the essence of preventive detention jurisdiction

and its sensitivities. Paras 11,12, 13, 14, 15, 16, 17, 18, 19 & 20

are worth reference herein which are reproduced as under:-

“11. Personal liberty protected under Article 21 of the Constitution is

held so sacrosanct and so high in the scale of constitutional values that

this Court has shown great anxiety for its protection and wherever a

petition for writ of habeas-corpus is brought-up, it has been held that the

obligation of the detaining-authority is not confined just to meet the

specific-grounds of challenge but is one of showing that the impugned

detention meticulously accords with the procedure established by law.

Indeed the English Courts a century ago echoed the stringency and

concern of this judicial vigilance in matters of personal liberty in the

following words:

Then comes the question upon the habeas corpus. It is a

general rule, which has always been acted upon by the Courts of

England, that if any person procures the imprisonment of another

he must take care to do by steps, all of which are entirely regular,

and that if he fails to follow every step in the process with

extreme regularity the Court will not allow the imprisonment to

continue."

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12. It has been said that the history of liberty has largely been the

history of observance of procedural safeguards. The procedural sinews

strengthening the substance of the right to move the court against

executive invasion of personal liberty and the due dispatch of judicial-

business touching violations of this great is stressed in the words of Lord

Dinning:

Whenever one of the King's Judges takes his seat, there is

one application which by long tradition has priority over all

others. Counsel has but to say 'My Lord, l have an application

which concerns the liberty of the subject' and forth-with the

Judge will put all other matters aside and hear it. It may be an

application for a writ of habeas corpus, or an application for bail,

but, whatever form it takes, it is heard first.

13. Personal liberty, is by every reckoning, the greatest of human

freedoms and the laws of preventive- detention are strictly construed and

a meticulous compliance with the procedural safeguards, however

technical, is strictly insisted upon by the courts. The law on the matter did

not start on a clean state. The power of courts against the harsh

incongruities and unpredictabilities of preventive detention is not a

merely 'a page of history but a whole volume. The compulsions of the

primordial need to maintain order in society. without which the

enjoyment of all rights, including the right to personal liberty, would lose

all their meaning are the true justifications for the laws of preventive

detention. The pressures of the day in regard to the imperatives of the

security of the State and of public- order might. it is true, require the

sacrifice of the personal-liberty of individuals. Laws that provide for

preventive detention posit that an individual's conduct prejudicial to the

maintenance of public-order or to the security of State provides grounds

for a satisfaction for a reasonable prognostication of a possible future

manifestations of similar propensities on the part of the offender. This

jurisdiction has been called a jurisdiction of suspicion; but the

compulsions of the very preservation of the values of freedom, of

democratic society and of social order might compel a curtailment of

individual liberty. "To lose our country by a scrupulous adherence to the

written law" said Thomas Jeferrson "would be to lose the law itself, with

life, liberty and all those who are enjoying with us; thus absurdly

sacrificing the end to the needs." This is, no doubt, the theoretical

justification for the law enabling preventive detention.

HCP No. 282/2024

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14. But the actual manner of administration of the law of preventive

detention is of utmost importance. The law has to be justified by the

genius of its administration so as to strike the right balance between

individual-liberty on the one hand and the needs of an orderly society on

the other. But the realities of executive excesses in the actual enforcement

of the law have put the courts on the alert, ever-ready to intervene and

confine the power within strict limits of the law both substantive and

procedural. The paradigms and value judgments of the maintenance of a

right balance are not static but vary according as the "pressures of the

day" and according as the intensity of the imperatives that justify both the

need for and the extent of the curtailment to be individual liberty.

Adjustments and readjustments are constantly to be made and reviewed.

No law is an end in itself. The "inn that shelters for the night is not

journey's end and the law, like the traveller, must be ready for the

morrow."

15. As to the approach to such laws which deprive personal liberty

without trial, the libertarian judicial faith has made its choice between the

pragmatic view and the idealistic or doctrinaire view. The approach to the

curtailment of personal liberty which is an axiom of democratic faith and

of all civilized like is an idealistic one for, loss or personal liberty

deprives a man of all that is worth living for and builds up deep

resentments. Liberty belongs what correspond to man's inmost self. Of

this idealistic view in the judicial traditions of the free- world, Justice

Dougla said:

"Faith in America is faith in her free institutions or it is nothing.

The Constitution we adopted launched a daring and bold

experiment. Under that compact we agreed to tolerate even ideas

we despise. We also agreed never to prosecute people merely for

their ideas or beliefs ......."

16. Judge Stanley H. Fuld of the New York Court of Appeals said:

"It is a delusion to think that the nation's security is advanced by

the sacrifice of the individual's basic- liberty. The fears and

doubts of the moment may loom large, but we lose more than we

gain if we counter with a resort to alian procedures or with a

denial of essential constitutional guarantees."

It was a part of the American judicial faith that the Constitution

and Nation are one and that it was not possible to believe that national

security did require what the Constitution appeared to condemn.

HCP No. 282/2024

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17. Under our Constitution also the mandate is clear and the envoy is

left under no dilemma. The constitutional philosophy of personal liberty

is an idealistic view, the curtailment of liberty for reasons of State's

security, public-order, disruption of national economic discipline etc.

being envisaged as a necessary evil to be administered under strict

Constitutional restrictions.

18. In Ichudevi v. Union of lndia AIR 1980 SC 1983, Bhagwati J.

spoke of this Judicial commitment:

“The Court has always regarded personal liberty as the most

precious possession of mankind and refused to tolerate illegal

detention, regardless of the social cost involved in the release of

a possible renegade.

This is an area where the court has been most strict and

scrupulous in ensuring observance with the requirements of the

law, and even where a requirement of the law is breached in the

slightest measure, the court has not hesitated to strike down the

order of detention ...." (emphasis supplied)

19. In Vijay Narain Singh v. State of Bihar, AIR 1984 SC 1334

Justice Chinnappa Reddy J. in his concurring majority view said:

"....I do not agree with the view that those who are responsible

for the national security or for the maintenance of public order

must be the sole judges of what the national security or public

order requires. It is too perilous a pro- position. Our Constitution

does not give a carte blanche to any organ of the State to be the

sole arbiter in such matters .... There are two sentinels, one at

either end. The legislature is required to make the law

circumscribing the limits within which persons may be

preventively detained and providing for the safeguards

prescribed by the Constitution and the courts are required to

examine, when demanded, whether there has been any excessive

detention, that is, whether the limits set by the Constitution and

the legislature have been transgressed . . ."

20. In Hem Lall Bhandari v. Sikkim, AIR 1987 SC 762 at 766, it

was observed:

"It is not permissible in matters relating to the personal liberty

and freedom of a citizen to take either a liberal or a generous

view of the lapses on the part of the officers ........"

HCP No. 282/2024

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62. The preventive detention custody of the petitioner

being based upon procedural pitfalls is, thus, held to be illegal and

liable to be quashed.

63. Accordingly, preventive detention order No.

DMS/PSA/18/2024 dated 16

th

of July, 2024 passed by the

respondent No.2-District Magistrate, Srinagar read with

confirmation/ approval/ extension orders with respect to the

preventive detention of the petitioner are hereby quashed.

64. The petitioner is directed to be restored, without loss of

any time, to his personal liberty by his immediate release from the

concerned Jail and to that effect the Superintendent of the

concerned Jail detaining the petitioner to act in compliance of the

directions hereby being issued with respect to the release of the

petitioner from preventive detention custody.

65. Disposed of.

66. Record be returned.

(Rahul Bharti)

Judge

SRINAGAR

May 5

th

, 2025

“TAHIR”

i. Whether the Judgment is approved for reporting? Yes