Jammu & Kashmir High Court
Shahbaz Ahmed Aged 45 Years S/O Ghulam ... vs Union Territory Of J&K Through Its on 29 January, 2024
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 16.11.2023
Pronounced on : 29.01.2024
Case No. WP(Crl) no. 21/2023
Shahbaz Ahmed aged 45 years S/o Ghulam Mohd R/o
Ball Tehsil Mahore District Reasi through his mother
Sakina Begum aged 45 years wife of Ghulam Mohd
R/o Ball Tehsil Mahore District Reasi.
.....Petitioner(s)
Through: Mr. Asheesh Singh Kotwal, Advocate.
Mohd. Aamir Awan, Advocate.
Mr. Z.A. Chauhan, Advocate.
Vs
1. Union Territory of J&K through its
Commissioner/Secretary to Government
Home Department, Civil Secretariat,
Jammu.
2. District Magistrate, Reasi.
3. Senior Superintendent of Police, Reasi.
4. Superintendent, District Jail, Ambphalla,
Jammu.
5. Station House Officer, Police Station,
Mahore, Reasi.
..... Respondent(s)
Through: Mr. Mohd. Irfan Inqualbi, GA.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
1. Heard learned counsel for the parties, perused the pleadings
and also examined the record.
2. The respondent No. 2-District Magistrate Reasi, by virtue of
an order No. 02-PSA of 2023 dated 20.02.2023, has come to
subject the petitioner to preventive detention in exercise of
jurisdiction under Section 8 of the Jammu and Kashmir
Public Safety Act, 1978. It is this loss of his personal liberty
through the mode of aforementioned detention order which
the petitioner is calling in question to seek its restoration
and for that purpose the present writ petition for a writ of
habeas corpus under article 226 of the Constitution of India
has been brought by the petitioner acting through his
mother.
3. The impugned detention order No. 02-PSA of 2023 dated
20.02.2023 passed by the respondent No. 2-District
Magistrate, Reasi is based upon the grounds of detention as
formulated separately by the respondent No. 2-District
Magistrate, Reasi.
4. In the said grounds of detention, the respondent No. 2-
District Magistrate, Reasi has referred to a dossier No.
Pros/Dossier-04/2023/9738-41 dated 17.02.2023 served by
the respondent No. 3-Superintendent of Police (SSP), Reasi
whereby the preventive detention of the petitioner was
solicited.
5. In the said dossier, the petitioner came to be introduced as a
person instrumental in instigating the masses to create law
and order problem in the area by being active in anti-
national activities and maintaining effective contacts with
some anti-national elements/PAK handlers through social
media apps. The petitioner came to be alleged to be in close
contact with OGWs of the area and engaged in providing
mobile numbers of the families of the killed terrorists and
missing youth of the area to the PAK handlers so as to revive
militancy/terrorist activity in the area of district Reasi. The
petitioner's cousin, namely, Mohd. Rafiq and Nazir Ahmed
are said to have joined LET outfit in the year 1998 and one
of whom came to be eliminated by the security forces and
other having surrendered. With respect to the alleged
activities of the petitioner, the Police Station Mahore, Police
Post Dewal and Operation Camp Sarh are said to have
generated Daily Diary Reports No. 14 dated 03.02.2023, 04
dated 08.02.2023 and 13 dated 12.02.2023.
6. Thus, in a nutshell within a span of ten days period
reckoning from 03.02.2023 to 12.02.2023, the alleged
documented activities of the petitioner came to be reckoned
by the Senior Superintendent of Police (SSP), Reasi as
prejudicial to the security of the country and in particular of
Union Territory of Jammu and Kashmir warranting the
preventive detention of the petitioner.
7. The grounds of detention formulated by the respondent No.
2-District Magistrate, Reasi followed the script of the dossier
and by repeat of the same the subjective satisfaction on the
part of the respondent No. 2-District Magistrate, Reasi
subjecting the petitioner to preventive detention is said to
have been arrived at resulting in issuance of the detention
order.
8. The petitioner is a twenty one (21) years' young person
whose personal liberty has come to be clipped by the
respondent No. 2-District Magistrate, Reasi by reckoning his
activities to be prejudicial to the security of the nation and
in particular in UT of Jammu and Kashmir.
9. The detention order came to be executed on 21.02.2023
through Executing Officer, Inspector Arun Singh PID No.
EXJ-046179 of DPL Reasi who is said to have read over the
detention order to the petitioner explaining to him in Gojri
language the contents of the detention order and the
grounds of detention and also making aware the petitioner
about his right to make a representation against the order of
detention.
10. The detention order No. 02-PSA of 2023 dated 20.02.2023 so
passed by the respondent No. 2-District Magistrate, Reasi
came to be approved by the Government vide a Govt. Order
No. Home/PB-V/366 of 2023 dated 24.02.2023. Later, vide
a Govt. Order No. Home/PB-V/457 of 2023 dated
10.03.2023, the preventive detention of the petitioner came
to be confirmed by the Government by subjecting him to
suffer detainment for a period of six months in the first
instance to be kept under detention in District Jail, Jammu
followed by another Govt. Order No. Home/PB-V/857 of
2023 dated 14.08.2023 thereby further extending the period
of detention to last for another six months. The period of
detention of the petitioner is, thus, in currency.
11. The manner in which the detention of the petitioner has
come to be effected hints out clearly that the Senior
Superintendent of Police (SSP), Reasi in his dossier had not
presented a true state of facts for the notice of the
respondent No. 2-District Magistrate, Reasi. In his dossier
dated 17.02.2023, the Senior Superintendent of Police (SSP),
Reasi at no point ever suggested that the petitioner was
under any sort of detainment at the hands of the law and
enforcement authority/agency on account of his alleged
implication in reference to the aforementioned DDRs.
Dossier is dated 17.02.2023 whereas the order of detention
is dated 20.02.2023.
12. The Executing Officer enjoined upon the duty to execute the
detention warrant, in his execution report has stated that he
came to take into custody the person of the petitioner from
the Police Station Mahore on 21.02.2023 at about 0650
hours. This execution report does not reveal that how come
the petitioner was already in the catch of the Police Station
Mahore in the sense whether he was summoned in
connection with the execution of the detention warrant or
that he was already under state of arrest or detainment for
undisclosed reasons so as to be exchanged in terms of
custody from Police Station Mahore to preventive detention
custody. This aspect has a relevance too serious to be taken
casually when this Court comes across with a fact on record
that the execution of the detention warrant upon the
petitioner, as per the execution report of Executing Officer,
Inspector Arun Singh PID No. EXJ-046179 of DPL Reasi,
reveals that its execution had taken place on 21.02.2023
when the Executing Officer came to take the custody of the
petitioner from the Police Station Mahore but whereas, on
the other hand, the respondent No. 2-District Magistrate,
Reasi, vide a communication no. DM/RSI/2022-
23/JC/6463-68 dated 20.02.2023 addressed to the
petitioner's mother Sakina Begum, was apprising her that
the petitioner had already been taken into custody i.e., a day
before the execution of the detention warrant and that is the
reason that the Executing Officer in his execution report,
which is on record, has stated that he was taking the
custody of the petitioner from the Police Station Mahore.
Thus, there is more than what meets the eye in the case
attending the detainment of the petitioner which has not
been brought out in true light by and from the end of the
respondents which renders the very exercise of preventive
detention jurisdiction against the petitioner on the part of
the respondents seriously suspect and vitiated.
13. A personal liberty of a citizen of India, notwithstanding any
alleged desperate characterization and profiling of him by
law and enforcement authority/agency, cannot be fiddled
with without adopting due course of law that too in letter
and spirit. The respondents in their counter affidavit have
least bothered to explain as to how come the petitioner was
already in the catch and custody of the Police Station
Mahore a day before the execution of the detention warrant
to be simply handed over at the asking of the Executing
Officer Inspector Arun Singh PID No. EXJ-046179 of DPL
Reasi.
14. In view of this serious lacuna with respect to the very
detainment of the petitioner in purported reference to the
execution of the detention warrant, the detainment of the
petitioner under the preventive detention jurisdiction is held
to be illegal and deserves to be quashed.
15. For the reasons mentioned above, this writ petition is
allowed. Preventive detention order No. 02-PSA of 2023
dated 20.02.2023 whereby the petitioner has been subjected
to preventive detention is hereby quashed as a consequence
whereof the petitioner is ordered to be restored to its
personal liberty by the respondent no. 4-Superintendent,
District Jail, Ambphalla, Jammu.
16. Disposed of accordingly.
(Rahul Bharti)
Judge
JAMMU
29.01.2024
Naresh, Secy.
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
