HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Reserved on: 04.04.2024

Pronounced on: 30.05.2024

Case:- WP(Crl) No. 829/2022

Suhail Ahmad Lone Aged about 24 Years,

S/o Mohammad Maqbool Lone R/o

Harwan Sopore,

Tehsil: Bomai Zainageer, District

Baramulla.

(Through His Brother-in-Law namely Javid

Ahmad Shah).

….Petitioner(s)

Through: Mr. M. A. Wani, Advocate.

Vs

1. Union Territory of J&K through

Principal Secretary to Govt. Home Department, Civil Sectt.

Jammu/Srinagar.

2. District Magistrate Baramulla, Kashmir.

3. Senior Superintendent of Police, Sopore.

4. Superintendent of Central Jail, Kot Bhalwal Jammu.

.…. Respondent(s)

Through: Mr. Jehangir Ahmad Dar, GA.

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

JUDGMENT

(30.05.2024)

01. Heard learned counsel for the petitioner as well as for the

respondents. Perused the writ pleadings and the record

therewith.

02. Whether with respect to an unchanged set of facts and

circumstances a subjective satisfaction of a District

Magistrate under Jammu and Kashmir Public Safety Act, 2024:JKLHC-SGR:186

2 WP(Crl) No. 829/2022

1978 justify two preventive detention orders in succession

against same person both on different basis i.e.

maintenance of public order and security of State is the

question which this writ petition comes to pose to this

Court for an answer.

03. The petitioner, through the medium of this writ petition, is

challenging his preventive detention ordered by the

respondent No. 2 – District Magistrate, Baramulla in terms

of detention order No. 81/DMB/PSA/2022 dated

28.11.2022 thereby subjecting the petitioner to suffer

preventive detention by purportedly holding his activities

prejudicial to the security of the State warranting

curtailment of his fundamental right to personal liberty

otherwise guaranteed under article 21 of the Constitution of

India.

04. Before this Court comes to deal with the passing of the

aforementioned impugned detention order against the

petitioner, a reference needs to be made to a detention

order earlier made against the petitioner by the same very

District Magistrate, Baramulla acting at the instance of the

same very District Police, Sopore.

05. The Superintendent of Police (SP), Sopore had forward a

dossier vide a letter No. Pross/PSA/21/37102 dated

05.11.2021 thereby seeking preventive detention of the

petitioner by referring to the petitioner ’s alleged 2024:JKLHC-SGR:186

3 WP(Crl) No. 829/2022

involvement in FIR no. 109 of 2021, FIR no. 163 of 2021

and FIR no. 196 of 2021 all three registered by the Police

Station, Sopore.

06. This dossier had resulted in passing of a detention order

No. 27/DMB/PSA/2022 dated 09.11.2021 by the

respondent No. 2 – District Magistrate, Baramulla on the

ground that the petitioner’s alleged reported activities were

prejudicial to the “maintenance of public order of the State”

and, therefore, the petitioner came to be detained and

subjected to suffer detainment in the Central Jail Kot

Bhalwal, Jammu for a period of one year meaning the

maximum period prescribed for detention under section 8

of the Jammu and Kashmir Public Safety Ac t, 1978

relatable to the ground of maintenance of public order.

07. The first time preventive detention of the petitioner dated

09.11.2021 order aforestated had taken place in the wake

of his arrest on 02.11.2021 in connection with the FIR no.

196 of 2021 dated 23.07.2021 registered by the Police

Station Sopore in which the petitioner figured as one of the

named accused persons.

08. For the sake of reference, this detention order dated

09.11.2021 along with grounds of detention framed in

support thereof by the respondent No. 2 – District

Magistrate, Baramulla are reproduced herein:-

2024:JKLHC-SGR:186

4 WP(Crl) No. 829/2022

“Office of the District Magistrate Baramulla

Subject: Detention under J&K Public Safety Act, 1978

Order No: 27/DMB/PSA/2021

Dated: 09-11-2021

Whereas, Superintendent of Police Sopore vide his office letter

No. Pross/PSA/21/102 dated 05.11.2021, has produced material

record, such as dossier and other connected documents viz copy of

FIR No: 109/2021, 163/2021, 196/2021, seizure memos etc. in

respect of Suhail Ahmad Lone S/o Mohammad Maqbool Lone R/o

Harwan Sopore, Tehsil Bomai Zaingeer, District Baramulla.

Whereas, I District Magistrate Baramulla have perused the

contents and recommendations mentioned in the dossier carefully,

produced before me in respect of said person.

Whereas, I am satisfied that with a view to prevent Suhail

Ahmad Lone S/o Mohammad Maqbool Lone R/o Harwan Sopore,

Tehsil Bomai Zaingeer, District Baramulla from acting in any manner

in the activities which are prejudicial to the maintenance of public

order and warrant immediate measures to be taken against the

subject to stop him from indulging in such activities which are

prejudicial to the maintenance of public order of the State.

Now, therefore, in exercise of powers conferred by clause (a) of

section 8 of J&K Public Safety Act 1978, I District Magistrat e

Baramulla hereby direct that the aforesaid person be detained and

lodged in Central Jail Kotebhbulwal Jammu for a period to be

specified by the Government.

Sd/-

District Magistrate

Baramulla

No: DMB/PSA/2021/163 -167

Grounds of Detention

Name:- Suhail Ahmad Lone

Son of:- Mohammad Maqbool Lone.

Address:- Harwan Zaingir, Sopore.

Tehsil:- Bomai Zaingir.

District:- Baramulla.

Age:- 23 Years.

You were born in your native place and is 23 years of age. You

are an incorrigible anti social element who has been coming to the

adverse notice of Police for organizing and leading unlawful

demonstrations & pelting stones upon police/security forces in Area

Sopore in the wake of killing of LET terrorists namely Waseem Nazir

R/O Hatlangoo on 04-05-2021, LET Commander namely Mudasir

Ahmad Pandith R/O Dangerpora on 21 -06-2021 and terrorist of LET

outfit namely Fayaz Ahamd War R/O Warpora Sopore on 23-07-

2021. You have studies up to 12

th

standard from Higher Secondary

School Bomai Sopore and thereafter completed your BSc from Govt.

Degree College Sopore and is presently dealing with fruit business.

You have been identified as one of the main instigators of stone 2024:JKLHC-SGR:186

5 WP(Crl) No. 829/2022

pelting in Area Sopore following the killings of various terrorists of

Sopore area. Your aim and objective is to disturb the maintenance of

public order and to create an atmosphere conducive to propagation

of secessionist ideology. Your activities are directed towards

achieving this object which has a direct bearing upon the

maintenance of public order. During the recent past you have turned

an in corrigible anti social element and developed contacts with the

likeminded elements and has formed a gang like outfit which at every

available opportunity has been found resorting to stone pelting and

disturbing the public order in Sopore area.

You have been found motivating youth of area Sopore for

creating law and order incidents thereby disturbing peace and public

order on the ground by forcing the general public to observe strikes

on the killing to resort to stone pelting in Sopore area. It will be

pertinent to mention here that stone pelting incidents apart from

disturbing the public order endangers human life and property and a

number of police/security forces detailed for law and order duties

have been seriously injured during such incidents. The anti social

elements are desperately trying to keep the Sopore area on boil and

you are one of the important anti social elements to implement the

said strategy, which has assumed alarming proportions in recent

times.

You have been figuring adversely in police records for creating

law and order problems to disturb peace. You have been specifically

identified as an accused in the following cases of Police Station

Sopore;

1- Case FIR No. 109/2021 U/S 307, 147, 148, 149, 336, IPC.

2- Case FIR No. 163/2021 U/S 307, 147, 148, 149, 336, IPC.

3- Case FIR No. 196/2021 U/S 307, 147, 148, 149, 336, IPC.

Copies of FIR’s/site plan’s/seizure memos/statements are

enclosed marked as annexure A to A-5, B to B-5 and C to C-7

(Total 20 leaves)

However, you were arrested on 02-11-2021 in connection with

the investigation in case FIR No. 196/2021 U/S 307, 147, 148, 149,

336, IPC which was registered in Police Station Sopore against you

on 23-07-2021, when you alongwith your associates attacked the

police/security forces at main Chowk Warpora Sopore with the

intention to cause death. You are presently on Police remand in the

instant case. Although, you are presently under custody, but there is

a likelihood of your being admitted to bail and in case you are

released at this stage there is well founded apprehension that you

will again indulge in similar activities as have been mentioned above.

In order to stop you from indulging in activities which are

prejudicial to the maintenance of public order, your detention under

the provisions of J&K Public Safety Act – 1978 has become

imperative, as the normal law has not proved sufficient to stop you

from indulging in such activities.

In view of the above you are hereby detained under the

provisions of J&K Public Safety Act 1978, you have a right of making

representation before the Government in the Home Department or

before the undersigned within prescribed time period against your

detention, if you so choose.

Sd/-

District Magistrate

Baramulla

2024:JKLHC-SGR:186

6 WP(Crl) No. 829/2022

09. The petitioner came to challenge his said detention by filing

a writ petition WP (Crl) No. 86/2022 before this Court. This

writ petition was filed on 31.03.2022 and had remained

pending on the docket of this Court when the pendency of

the writ petition outlasted one year period of detention

inflicted upon the petitioner as a result whereof the writ

petition was rendered infructuous and came to be disposed

of accordingly in terms of an order dated 14.11.2022

whereby this Court called upon the detaining authority to

release the petitioner in case if he was not required in any

other case.

10. The petitioner in his petition has alleged that without

earning any release upon expiry of the detention period in

terms of the detention order No. 27/DMB/PSA/2022 dated

09.11.2021 and direction to said effect by this Court in

terms of its order dated 14.11.2022, the petitioner was

retained in illegal custody and just after period of 13 days

again came to be subjected to suffer next round of

preventive detention in terms of the impugned detention

order No. 81/DMB/PSA/2022 dated 28.11.202 2 on the

purported ground that the petitioner’s activities are

reckoned to be prejudicial to the security of the State

warranting his preventive detention. While the petitioner

was already lodged in Central Jail Kot Bhalwal, Jammu in a

state of illegal confinement, the second detention order 2024:JKLHC-SGR:186

7 WP(Crl) No. 829/2022

came to be executed upon him by showing its date of

execution to be 01.12.2022.

11. This second detention was ordered by the respondent No. 2

– District Magistrate, Baramulla purportedly acting upon a

dossier forwarded by the Senior Superintendent of Police

(SSP), Sopore vide a letter No. Pross/PSA/2022/37020-22

dated 25.11.2022 which was nothing but a repeat of the

earlier dossier served by the Senior Superintendent of

Police (SSP), Sopore on the basis of which the first

detention order No. 27/DMB/PSA/2022 dated 09.11.2021

was issued.

12. By literally guided and led by the said dossier dated

25.11.2022, the respondent No. 2 – District Magistrate,

Baramulla came to formulate purported grounds of

detention against the petitioner so as to draw purported

subjective satisfaction and passed the detention order No.

81/DMB/PSA/2022 dated 28.11.2022.

13. For the sake of reference, the impugned detention order as

well as grounds of detention in relation thereto passed and

framed by the respondent No. 2 – District Magistrate,

Baramulla are reproduced herein as under:-

“Office of the District Magistrate Baramulla

Subject: Detention under J&K Public Safety Act, 1978

Order No: 81/DMB/PSA/2022

Dated: 28-11-2022

2024:JKLHC-SGR:186

8 WP(Crl) No. 829/2022

Whereas Sr. Superintendent of Police Sopore vide his office letter

No. Pross/PSA/2022/37020 -22 dated 25-11-2022, has produced

dossier in respect of Suhail Ahmad Lone S/O Mohammad Maqbool

Lone R/o Harwan, Tehsil Bomai Zaingeer, District Baramulla.

Whereas, I District Magistrate Baramulla have perused the

contents and recommendations mentioned in the dossier carefully

produced before me in respect of said person.

Whereas, I am satisfied that with a view to prevent Suhail

Ahmad Lone S/O Mohammad Maqbool Lone R/O Harwan, Tehsil

Bomai Zaingeer, District Baramulla from acting in any manner in the

activities which are prejudicial to security of the state and warrant

immediate measures to be taken against the subject to stop him from

indulging in such activities which are prejudicial to the security of the

state.

Now, therefore in exercise of powers conferred by clause (a) of

section 8 of the J&K Public Safety Act 1978, I District Magistrate

Baramulla hereby direct that the aforesaid person be detained and

lodged in Central Jail Kotebhulwal Jammu for a period to be specified

by the Government.

Sd/-

District Magistrate

Baramulla

No: DMB/PSA/2022/432 -36

Grounds of Detention

Name:- Suhail Ahmad Lone

Son of:- Mohammad Maqbool Lone.

Address:- Harwan Bomai

Tehsil:- Bomai Zaingeer

District:- Baramulla

Category:- OGW

Age:- 24 Years.

While perusing the dossier submitted by SSP Sopore against

you, it has been reported that you were born in your native Harvan

Bomai, Sopore and is 24 years old. As reported by the Police, you have

been noticed as an incorrigible anti national/social element and

remained involved in organizing and leading unlawful demonstrations

& pelting stones upon police/security forces in Area Sopore after the

killing of LeT terrotists namely Waseem Nazir R/O Hatlangoo on 04-

05-2021, LeT Commander namely Mudasir Ahmad Pandith R/O

Dangerpora on 21-06-2021 and terrorist of LeT outfit namely Fayaz

Ahamd War R/O Warpora Sopore on 23 -07-2021. Your were found

previously involved in below mentioned criminal cases of PD Sopore.

1- Case FIR No. 109/2021 U/S 307, 147, 148, 149, 336, IPC.

2- Case FIR No. 163/2021 U/S 307, 147, 148, 149, 336, IPC.

3- Case FIR No. 196/2021 U/S 307, 147, 148, 149, 336, IPC.

You were detained und er PSA vide this office order No:

27/DMB/PSA/2021 dated 09 -11-2021, being involved, as reported by 2024:JKLHC-SGR:186

9 WP(Crl) No. 829/2022

the police in the aforementioned unlawful/criminal activities.

However, Hon’ble High court of J&K at Srinagar in its order dated 14-

11-2022 ordered your release. Reportedly, after your release, as per

the reliable and credible information/reports received by police from

various agencies, your activities have been noticed as a threat to the

National Security and Integrity of the Union of India as you have

reportedly, voluntarily developed contacts with various

terrorist/secessionist organizations and associates yourself with LeT

outfit to carry out the activities related to secessionism and terrorism.

LeT terrorist organization acts on directions and sermons of handlers

across the border for terrorist related activities.

It has been further been reported in the dossier prepared by

police that on the basis of inputs received from various agencies and

blogs on Social Media platform establishes that LeT is being controlled

by ISI of Pakistan and on their advice and directions they are carrying

out terrorist activities like killings of soft targets like street vendors,

labourers from outside J&K UT, working in J&K, policemen who are

off duty or are unarmed, so as to create an atmosphere of fear and

intimidation being detrimental for integrity and sovereignty of the

country. You were reportedly providing all kinds of help and logistics

to the terrorists in the past and it is apprehended on the basis of

inputs from various reliable sources/agencies, that you will again join

and terrorist organization and choose the same path on behest of LeT

outfit and handlers across the border, in case you remain at large at

this stage. The recent use of VOIP, VPN, encrypted messaging

applications and hotspots by such individuals have made their

identification and apprehensions difficult. It has turned possible by

the coordinated and strenuous efforts made by various agencies to

identify you and unearth your linkages with terrorist outfits again in

the face of the use of extreme and modern communication technology

by the individual to evade being identified.

In view of your previous track of record and apprehension of

your re-involvement in unlawful/terrorist activities, putforth by the

Police and your remaining at large at this stage, it has become

imperative to detain you so that the efforts of police and other law

enforcement agencies do not go in vain, who are making every effort to

put an end to the mindless killing of civilians in the UT of J&K,

otherwise it may be difficult for the police and other law enforcement

agencies to reign in on the terror outfits operating in J&K as you are

an important arm of the terror ecosystem, currently operating in J&K.

Your activities referred to above are not only pre-judicial to the

security of the state but are also aimed to recycle vicious terror

atmosphere and create an atmosphere conducive for secessionists and

terrorists to destabilize the government machinery.

In order to stop you from indulging in activities which are

prejudicial to the maintenance of the security of state, your detention

under Public Safety Act-1978 has become imperative as the normal

law has not proved sufficient to deter you from indulging in such

activities.

In view of the above, you are hereby detained under the

provision of J&K Public Safety Act-1978. You have a right of making a

representation before the Government in the Home Department

against your detention, if you choose so.”

Sd/-

District Magistrate

Baramulla

2024:JKLHC-SGR:186

10 WP(Crl) No. 829/2022

14. The preventive detention of the petitioner came to be

confirmed by the Govt. of UT of Jammu and Kashmir by

virtue of Govt. order No. Home/PB-V/3256 of 2022 dated

26.12.2022 whereby the petitioner’s detention was declared

confirmed and was ordered to be detained outside the UT of

Jammu and Kashmir in the District Jail Bareilly, Uttar

Pradesh (UP).

15. The institution of the present writ petition came to take

place on 28.12.2022. It is after the institution of the writ

petition that the petitioner’s detention was further extended

by virtue of Govt. order No. Home/PB -V/1080 of 2023

dated 16.05.2023.

16. It is in the aforesaid state of facts and circumstances that

the petitioner is challenging his preventive detention as

being illegal and unwarranted carried out on the frivolous

exercise of discretion at the end of the respondent No. 2 –

District Magistrate, Baramulla.

17. When this Court makes a comparative reading of the two

detention orders above referred alongwit h respective

grounds of detention supporting the said two detention

orders, this Court comes to see them replica of each other

except an addition of one or two paragraphs in the grounds

of detention which came to be formulated by the

respondent No. 2 – District Magistrate, Baramulla in

support of his second detention order and the addition of 2024:JKLHC-SGR:186

11 WP(Crl) No. 829/2022

said paragraphs is nothing but just bad branding and

name calling of the petitioner without any factual content

therein.

18. There is absolutely nothing in the name of the facts as to

what happened in the intervening 13 days of purported

liberty of the petitioner upon his purported release upon

the passing of the order dated 14.11.2022 by this Court in

WP(Crl) No. 86/2022 and 28.11.2022 when the impugned

preventive detention order came to be passed against the

petitioner by the respondent No. 2 – District Magistrate,

Baramulla.

19. This Court is left to wonder that for the selfsame set of

circumstances without any iota of change except

intervention of 13 days in between from expiry of first

detention order dated 09.11.2021 in terms of order dated

14.11.2022 of this Court in terms whereof the petitioner

was order to be let off and the passing of the second

detention order dated 28.11.2022 how come the very same

set of facts and circumstances at the first instance were

held to be prejudicial to the maintenance of Public Order

and second time to be prejudicial to the security of the

State.

20. It is, thus, rendered clear that the so called subjective

satisfaction of the respondent No. 2 – District Magistrate,

Baramulla is nothing but matter of word play taking it for 2024:JKLHC-SGR:186

12 WP(Crl) No. 829/2022

granted that District Magistrate as well as the Govt. of UT

of Jammu and Kashmir have omnipotent power and

authority to subject any person to suffer preventive

detention at any given point of time and for that matter any

given District Magistrate or Govt. of UT of Jammu and

Kashmir by appropriating expression of his and its liking in

terms of the grounds of detention envisaged under section 8

of the Jammu and Kashmir Public Safety Act, 1978, can

feel free to subject a person to suffer loss of personal liberty

in the name of an order passed under Jammu and Kashmir

Public Safety Act, 1978 as if exercise of preventive detention

jurisdiction is answerable and/or accountable to no one.

Such misconception at the end of the respondent No. 2 –

District Magistrate, Baramulla needs a reality check that

the constitutional courts are the guardian of the guarantees

of fundamental rights to the citizens of the country and in

the event of violation of a fundamental right in particular

that of right to life and personal liberty, a constitutional

court is meant not only to be extra sensitive but pro-active

in immediately curbing the situation which is generating

the violation of said fundamental right to life and personal

liberty.

21. In view of the aforesaid, the preventive detention of the

petitioner is held and declared to be illegal per se and,

therefore, the impugned preventive detention order No. 2024:JKLHC-SGR:186

13 WP(Crl) No. 829/2022

81/DMB/PSA/2022 dated 28.11.2022 read with

consequent approval/confirmation order passed by the

Govt. of UT of Jammu and Kashmir are hereby quashed

and petitioner is directed to be released to his personal

liberty not only by the Superintendent of the concerned Jail

wherever the petitioner is detained but also by the

respondent No. 2 – District Magistrate, Baramulla to ensure

that the petitioner is released from the said Jail at the

earliest.

22. Disposed of.

(RAHUL BHARTI )

JUDGE

JAMMU

30.05.2024

Bunty

Whether the order is speaking: Yes

Whether the order is reportable: Yes 2024:JKLHC-SGR:186