HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Reserved on : 18.03.2024

Pronounced on : 03.04.2024

Case:- WP(Crl) No. 790/2022

Mohsin Qadir Rather, Aged 21 years,

S/o Ghulam Qadir Rather,

R/o Kurhama Budgam.

Through his father

Ghulam Qadir Rather, Aged 61 years.

….Petitioner(s)

Through: Mr. R. A. Khan, Advocate

Vs

1. UT of J&K through Additional Chief Secretary, Home Department,

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

2. District Magistrate, Budgam

.…. Respondent(s)

Through: Mr. Faheem Shah, 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 has come up with the filing of the present

writ petition on 15.12.2022 by acting through his father Ghulam

Qadir Rather, feeling aggrieved of his preventive detention

custody which left him deprived of his personal liberty, for

seeking restoration of which the writ jurisdiction of this Court

under article 226 of the Constitution of India came to be invoked. 2024:JKLHC-SGR:144

2 WP(Crl) No. 790/2022

3. In the estimate of the Sr. Superintendent of Police (SSP),

Budgam, the petitioner’s alleged activities were of objectionable

nature posting threat to the security of the UT of Jammu &

Kashmir and, accordingly, a dossier came to be submitted

through letter No.Legal/Dos/2022/6628-31 dated 21.11.2022 to

the respondent No. 2 – District Magistrate, Budgam.

4. The respondent No. 2 – District Magistrate, Budgam on

his part came to draw a subjective satisfaction that the case was

made out whereby the petitioner’s alleged reported activities are

of the nature prejudicial to the security of the UT of Jammu &

Kashmir and, therefore, passed the preventive detention order No.

DMB/PSA/54 of 2022 dated 22.11.2022.

5. The operative facts which came to play in the alleged

framing of a dossier against the petitioner related to FIR No.

101/2020 registered by the Police Station Magam for alleged

commission of offences under section 18, 23, 39 of Unlawful

Activities (Prevention) Act, 1967 and 7/25 of the Arms Act, 1959

in which the petitioner came to figure as one of the accused

persons along with three other accused persons. A Final Police

Report under Section 173 Cr. PC, 1973 came to be submitted for

booking the petitioner and three other accused persons for

criminal trial before the Special Judge, Srinagar. 2024:JKLHC-SGR:144

3 WP(Crl) No. 790/2022

6. The special Judge Srinagar, by virtue of an order dated

22.10.2022, came to admit not only the petitioner but also the

three other accused persons, namely, Abid Ahmad Rather, Owais

Ahmad Malik & Ifshan Ahmad Ganie book ed in FIR No. 101/2020

to bail.

7. It is after this development of grant of bail in favour of

the petitioner and three other accused persons that the Sr.

Superintendent of Police (SSP), Budgam had come forward with a

dossier against the petitioner resulting in passing of the

impugned detention order against the petitioner which came to be

executed against the petitioner on 24.11.2022 lodging him in the

Central Jail Kotbhalwal, Jammu.

8. The petitioner acting through his father came to submit

his representation dated 10.12.2022 which came to be forwarded

by the respondent No. 2 – District Magistrate, Budgam through

his letter No. DMB/PSA/022/251 -55 dated 10.12.2022 to the

Financial Commissioner (Additional Chief Secretary) to Govt.,

Home Department, UT of J&K for consideration.

9. The petitioner’s preventive detention case came to be

submitted to the Advisory Board under the Jammu & Kashmir

Public Safety Act, 1978 which came forward to tender its opinion

on 20.12.2022 justifying the preventive detention of the petitioner

and compliance of the procedure, as a result whereof the Govt. of 2024:JKLHC-SGR:144

4 WP(Crl) No. 790/2022

UT of Jammu & Kashmir came to confirm the preventive

detention of the petitioner by passing a Govt. Order No.

Home/PB-V/3308 dated 30.12.2022 without stating anything in

the said order about the fate of the representation of the

petitioner.

10. It is in this backdrop of the facts and circumstances

that the petitioner came forward to file the present writ petition to

which the respondent came forward to submit its counter

affidavit on 13.02.2023.

11. In the grounds of detention formulated by the

respondent No. 2 – District Magistrate, Budgam, the petitioner

came to be referred to be working as OGW with Lashker -I-Toiba

terrorist outfit providing shelter, logistic support to the active

terrorists of LeT outfit in the area in order to promote terrorism in

the area, by staying in touch with them and simultaneously

motivating the youth of the area in anti-national activities. In this

context the petitioner’s involvement in FIR No. 101/2020 has

been highlighted to portray that the petitioner’s antecedents are

of the nature which profile him to be acting as cohort of terrorists.

12. The preventive detention of the petitioner has been

challenged on the ground that the allegations against the

petitioner have no nexus with the exercise of preventive detention

jurisdiction and is just a guise to inflict punishment upon the 2024:JKLHC-SGR:144

5 WP(Crl) No. 790/2022

petitioner overreaching the criminal trial set in effect against him

and other co-accused by virtue of their alleged involvement in FIR

No. 101/2020. The petitioner has highlighted it as a ground of

challenge that the fact of his being admitted to bail was

deliberately screened away from being referred to in the dossier

and consequently in the grounds of detention otherwise the same

would have an impactful effect on the decision making on the

part of the respondent No. 2 – District Magistrate, Budgam in the

matter of exercise of jurisdiction under the Jammu & Kashmir

Public Safety Act, 1978 and that renders the impugned detention

of the petitioner illegal.

13. When this Court examines the grounds of detention, it

comes across with a stark fact that neither the Sr.

Superintendent of Police (SSP), Budgam nor the District

Magistrate, Budgam have exhibited any sense of awareness about

the fact as to what was the state of the criminal case born out of

FIR No. 101/2020 registered by the Police Station Magam, in a

sense, if the Final Police Report was presented against the

petitioner and other accused persons for the sake the full

disclosure of the said Final Police Report to be made in the

dossier as well as in the grounds of detention and also as to any

bail granted or denied, the basis for denial or grant if any of the

said bail along with an order to said effect be provided so as to

stay in notice of all relevant facts which are and were 2024:JKLHC-SGR:144

6 WP(Crl) No. 790/2022

indispensable in proposing and granting the preventive detention

order against the petitioner. For the reasons best known to the

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

respondent No. 2 – District Magistrate, Budgam, this Court holds

that they have stayed away from acting in a true and full

disclosure and knowledge of facts, thereby vitiating the preventive

detention order.

14. There is no denial to the fact from the respondents end

that the representation was made by the petitioner against his

preventive detention which came to be duly forwarded to the

Govt. for consideration way back on 10.12.2022. Counter affidavit

came to be filed to the present writ petition on 13.12.2023

wherein there is no whisper of reference from the Govt.’s end as

to what fate the representation of the petitioner came to be

subjected to.

15. If this Court is not being apprised of the status of

consideration accorded to the said representation of the

petitioner, then it does not require any stretch of mind to imagine

as to how the petitioner could be expected to know about the fate

of his said representation, meaning thereby that making of the

representation by the petitioner against his preventive detention

in the eyes and estimate of the Govt. of UT of J&K was a matter of

mechanical exercise not meant to bother application of mind at

its end and that is the reason that even in the counter affidavit 2024:JKLHC-SGR:144

7 WP(Crl) No. 790/2022

the outcome of the said representation has been left unstated.

This has been done by the Govt. at its own risk and cost and,

thus, rendering the preventive detention of the petitioner vitiated

with illegality.

16. Accordingly, the preventive detention of the petitioner is

held to be illegal. The preventive detention order No.

DMB/PSA/54 of 2022 dated 22.11.2022 passed by the

respondent No. 2-District Magistrate, Budgam 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, Budgam to ensure

that the petitioner does not suffer delay in earning his release

from the Jail where he is being detained under the quashed

detention order.

17. Disposed of accordingly.

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

(RAHUL BHARTI)

JUDGE

SRINAGAR

03.04.2024

Muneesh

Whether the order is speaking : Yes

Whether the order is reportable: Yes 2024:JKLHC-SGR:144