HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Reserved on : 04.04.2024

Pronounced on : 03.06.2024

Case:- WP(Crl) No. 147/2023

Rayees Ahmad Khan (aged 29 years)

S/o Late Wazir Mohammad Khan,

R/o Raj Mohalla, Trikanjan, Boniyar,

Baramulla

Through his wife namely Farhat Begum.

….Petitioner(s)

Through: Mr. N. A. Ronga, Advocate

Vs

1. Union Territory of Jammu & Kashmir through Principal Secretary

Home Department Civil Secretariat, Jammu/ Srinagar.

2. District Magistrate, Baramulla.

.…. Respondent(s)

Through: Mr. Jehangir Dar, 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 is who is under preventive detention

custody, allegedly from 17.03.2023, has come forward with the

present writ petition filed through his wife – Farhat Begum for

seeking a writ of habeas corpus so as to earn his release from the

preventive detention custody which the petitioner alleges to be

2 WP(Crl) No. 147/2023

illegal and unconstitutional. This writ petition came to be filed on

02.05.2023 and the preventive detention custody of the petitioner

has now lasted more than one year in running.

3. A case for preventive detention of the petitioner came to

be proposed by the Sr. Superintendent of Police (SSP), Baramulla

when by letter No. Lgl/PSA/2023/584 -87 dated 06.03.2023 a

dossier was submitted to the respondent No. 2 -District

Magistrate, Baramulla for invoking jurisdiction under section 8 of

the Jammu & Kashmir Public Safety Act, 1978.

4. The background in which the Sr. Superintendent of

Police (SSP), Baramulla submitted a dossier against the petitioner

was by his alleged involvement in number of FIRs which being

FIR No. 14/2014, FIR No. 70/2016, FIR No. 45/2019, FIR No.

58/2020, FIR No. 36/2021, FIR No. 35/2022 and FIR No.

206/2022 referable to Police Stations Baniyar, Sheeri, Trikuka

Nagar & Gangyal.

5. The dossier submitted by the Sr. Superintendent of

Police (SSP), Baramulla led the respondent No. 2 – District

Magistrate, Baramulla to entertain a purported subjective

satisfaction that the facts and circumstances allegedly reported

with respect to the petitioner make out a case for ordering the

preventive detention under the Jammu & Kashmir Public Safety

Act, 1978 and, accordingly, the preventive detention order No.

3 WP(Crl) No. 147/2023

16/DMB/PSA/2013 dated 10.03.2023 came to be passed by the

respondent No. 2 – District Magistrate, Baramulla thereby

ordering arrest and preventive detention of the petitioner in order

to prevent him from acting in a manner prejudicial to the security

of the State and upon his detention to be detained in the Central

Jail Kotbhalwal, Jammu.

6. This preventive detention order came to be executed

against the petitioner allegedly on 17.03.2023 though the

petitioner says he was already picked up before the said date. The

preventive detention order so passed by the respondent No. 2 –

District Magistrate, Baramulla is supported on purported grounds

of detention in which the respondent No. 2 – District Magistrate,

Baramulla comes to refer the FIRs, as referred in the dossier,

which are reproduced hereunder:-

1. FIR No. 14/2014 u/s 366 RPC of Police Station Boniyar.

2. FIR No. 70/2016 u/s 379 RPC & 6 of Forests Act of

Police Station Sheeri.

3. FIR No. 45/2019 u/s 457, 380 IPC of Police Station

Boniyar.

4. FIR No. 58/2020 u/s 323, 148, 452, 354 IPC of

Police Station Boniyar.

5. FIR No. 36/2021 u/ s 8/21 NDPS Act of Police

Station Sheeri.

4 WP(Crl) No. 147/2023

6. FIR No. 35/2022 u/s 8/21, 22, 25, 29 NDPS Act of

Police Station Gangyal Jammu.

7. FIR No. 206/2022 u/s 8/21, 22, 27-A NDPS Act of

Police Station Trikuta Nagar Jammu.

7. In the grounds of detention, the petitioner came to be

referred as an incorrigible anti-national element being in the

adverse notice of the Police for committing difference offences

including kidnapping/abduction/theft/house breaking in night

thereby disturbing peace and tranquility of the area, creating

chaos, confusion and fear psychosis in the general public of tehsil

Boniyar and Trikanjan area. The petitioner is also alleged to be a

habitual smuggler/supplier of narcotic and psychotropic

substances posing a great to the health and welfare of the people

as well as economy of the nation.

8. By reference to the petitioner’s indulgences in the

aforesaid FIRs, he is alleged to be resorting to exploitative and

manipulative methods, harbouring deep anti-national sentiments

and nurturing anti-national ideology. It is by this reckoning, the

petitioner’s personal liberty was reckoned to be prejudicial to the

security of the State.

9. The detention order came to be approved by the Govt. of

UT of J&K by virtue of Govt. Order No. Home/PB-V/485/2023

dated 17.03.2023 whereupon a case was submitted to the

5 WP(Crl) No. 147/2023

Advisory Board for its opinion which came to be tendered on

14.03.2023 resulting in confirmation of the preventive detention

order of the petitioner by the Govt. of UT of Jammu & Kashmir

vide Govt. Order No. Home/PB-V/809 of 2023 dated 17.04.2023.

10. It is in the aforesaid backdrop of the facts and

circumstances that the petitioner came forward with the

institution of the present writ petition on 02.05.2023 throwing

challenge to his preventive detention on the grounds as

mentioned in the writ petition to which this Court needs not

advert to for the simple reason that the preventive detention of

the petitioner is seriously flawed on account of the fact that 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 as if it being one of the statutory basis for subjecting

a person to suffer preventive detention under section 8 of the

Jammu & Kashmir Public Safety Act, 1978.

11. 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” has ceased to be no more 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,

6 WP(Crl) No. 147/2023

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 power

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, “Security

of the State” obtaining in 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 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 is, technically disqualifies to be a

valid order of preventive detention against a detenue.

12. 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

7 WP(Crl) No. 147/2023

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.

13. 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 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 existence for whose safety and

security detention order under J&K Public Safety Act, 1978 can

be passed.

14. Thus, the respondent No. 2 – District Magistrate,

Baramulla seriously erred in application of his mind and same

state of defective application of mind came to be literally followed

by the Govt. of UT of Jammu & Kashmir in approving and

confirming the preventive detention of the petitioner even

escaping the examination and attention of the Advisory Board.

15. In addition, the preventive detention of the petitioner is

seriously questionable in the context of so-called subjective

satisfaction of the respondent No. 2 – District Magistrate,

8 WP(Crl) No. 147/2023

Baramulla in the sense that in all the referred FIRs against the

petitioner none of those relate to the security of the Union

Territory of the Jammu & Kashmir aspect, assuming for the sake

of assumption that security of the State is meant to be security of

the UT of Jammu & Kashmir though there cannot be any such

assumption.

16. The petitioner is supposed to be dealt with under

routine penal code in force and the Criminal Procedure Code

which is meant to book and punish the petitioner if found guilty

in any of the aforesaid FIRs but not to visit the petitioner with a

punitive punishment through the mode of pr eventive detention

custody at the sweet discretion of Sr. Superintendent of Police

(SSP), Baramulla and the District Magistrate, Baramulla.

17. In the entire grounds of detention, the respondent No. 2

District Magistrate, Baramulla has nowhere taken pain to refer

his application of mind to the aspect as to whether he has been

fully briefed by the Sr. Superintendent of Police (SSP), Baramulla

about the state of the cases relatable to the FIRs mentioned

against the petitioner. Thus, the reference to the FIRs in the

grounds of detention as well as in the order of detention read with

the dossier, was a mode to sensationalize the profiling of the

petitioner otherwise the rest of the so-called grounds of detention

are nothing but mere hallowed recitals just for sake of statement

9 WP(Crl) No. 147/2023

which by no sense of imagination and inference, can be said to

make the petitioner a case for suffering preventive detention.

18. Accordingly, the preventive detention of the petitioner is

held to be illegal. The preventive detention order No.

16/DMB/PSA/2013 dated 10.03.2023 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, Baramulla 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.

19. Disposed of accordingly.

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

(RAHUL BHARTI)

JUDGE

SRINAGAR

03.06.2024

Muneesh

Whether the order is speaking : Yes

Whether the order is reportable: Yes