Jammu & Kashmir High Court - Srinagar Bench
Gowhar Maqbool Lone vs Union Territory Of J And K And Ors on 20 February, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
S.No. 3
Regular List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP 123/2024
GOWHAR MAQBOOL LONE ...Petitioner/ Appellant(s)
Through: Mr. Iman Abdul Muizz, Advocate vice
Mr. Tasaduq H. Khawja, Advocate
V/s
UNION TERRITORY OF J AND K AND ORS. ...Respondent(s)
Through: Mr. Bikramdeep Sing, Dy AG with
Ms. Nobhar Khan, AC
CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE.
ORDER
20.02.2025
1. The petitioner in the instant petition filed under Article 226 of the
constitution of India, has challenged detention order No. 03-DMG-
PSA-2024 dated 30.03.2024 (for short "Impugned Order") passed
by the District Magistrate, Ganderbal (for short the Detaining
Authority) under and in terms of the provisions of J&K Public
Safety Act, 1978 (for short "the Act of 1978").
2. The petitioner has challenged the impugned order on multiple
grounds urged in the petition.
3. Counter affidavit to the petition has been filed by the respondents,
wherein the petition is being opposed on the premise that the
petitioner has been found nurturing the secessionist ideology and
motivating others to follow the suit and upon cumulative
consideration of the activities of the petitioner and in order to
prevent him from acting in any manner prejudicial to the security
of the State, the detention of the petitioner under the Act of 1978
got necessitated.
It is further stated that the detenue has a subversive mind set
and has been found to be a serious threat to the National Security,
as such, came to be detained in terms of the order in question,
which order came to be passed by the Detaining Authority validly
and legally under and in terms of the provisions of the Act of 1978
after fulfilling and complying with all statutory requirements and
constitutional safeguards.
Heard learned counsel for the parties and perused the
detention record produced by the respondents.
4. Notwithstanding multiple grounds of challenge urged by the
petitioner in the instant petition, the counsel for the petitioner
would confine the challenge only to two grounds;
"Firstly" that the grounds of detention are replica of the dossier
suggesting that the detaining authority has not applied its
independent mind while detaining the petitioner under the Act of
"Secondly" that in the grounds of detention the detaining authority
has referred to the alleged activities attributed to the petitioner
being terrorist in nature and potential threat to the security and
integrity of the Country without providing specific particulars and
details of such alleged activities depriving the petitioner of his right
to make an effective representation against his detention.
5. On the contrary, the counsel for the respondents while opposing
the submissions of the counsel for the petitioner, would contend
that the order in question passed by the detaining authority is in
line and tune with the provisions of the Act of 1978, and would
insist for dismissal of the petition.
6. Insofar as the aforesaid first plea of the counsel for the petitioner
is concerned, a bare perusal of the grounds of detention as also the
dossier would manifestly tend to show that the grounds of
detention are essentially replica of the dossier furnished by the
sponsoring agency to the Detaining Authority qua the activities
attributed to the petitioner. Seemingly, the Detaining Authority
while drawing and framing the grounds of detention has not
applied its independent mind in the matter, as such, the said
failure of the Detaining Authority, in law, is not sustainable. A
reference in this regard to the judgment of the Apex Court passed
in case titled as "Jai Sing and Ors. Vs State of J&K reported
in AIR 1985 SC 764" would be relevant and germane.
7. Insofar as the aforesaid next plea of the counsel for the petitioner
is concerned, a deeper and closure examination of the grounds of
detention and the alleged activities attributed to the petitioner
herein to be prejudicial to the security and the integrity of the
country is concerned, it transpires that no specific details and
particulars of such activities have been provided or detailed out in
the grounds of detention. The said failure of the Detaining
Authority as well cannot sustain in law, moreso, in view of the law
laid down by the Apex Court in case titled as "Ram Bahadur
Rai Vs. State of Bihar & Ors reported in AIR 1975 SC 223
wherein it has been, inter alia, held that Article 22(5) of the
Constitution requires that the detenue shall be afforded the earliest
opportunity of making a representation against the order of
detention and that by a long series of decision, this right has to be
real and effective, not illusive or empty and that if the petitioner
was not apprised of what was truly alleged against him and if the
accusation, reasonably, was unintelligible, he was deprived of an
opportunity to make an effective representation against the
detention order".
8. Having regard to the aforesaid position obtaining in the matter, it
cannot, but be said that the impugned order is not legally
sustainable.
9. Accordingly, the instant petition is allowed and as a consequence
whereof, the impugned order No. 03-DMG-PSA-2024 dated
30.03.2024 is quashed, with a direction to the respondents
including concerned jail authority to release the petitioner from
preventive detention forthwith, unless required in any other case.
10. The detention record produced by the counsel for the
respondents is returned back in the open Court.
11. Disposed of.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR
20.02.2025
"S.Nuzhat"
