Jammu & Kashmir High Court - Srinagar Bench

Abdul Rehman Bhat vs Union Territory Of J&K And Ors on 28 May, 2025

Author: Rahul Bharti

Bench: Rahul Bharti

      HIGH COURT OF JAMMU& KASHMIR AND LADAKH
                     AT SRINAGAR


                    HCP No. 387/2024

                                       Reserved On: 2nd of April, 2025.
                                     Pronounced On: 28th of May, 2025.

Abdul Rehman Bhat
                                                  ... Petitioner(s)
                        Through: -

           Mr S. T. Hussain, Senior Advocate with
                 Ms Nida Nazir, Advocate.
                            V/s
Union Territory of J&K and Ors.
                                               ... Respondent(s)

Through: -

Mr Mohsin-ul-Showkat Qadri, Sr. AAG with Ms Nadiya Abdullah, Assisting Counsel. CORAM:

Hon'ble Mr Justice Rahul Bharti, Judge.

(JUDGMENT)

01. Heard learned counsel for the parties.

02. Perused the pleadings of the writ petition

and the record therewith. Also perused the record

relating to the detention of the petitioner as produced

by the learned counsel for the respondents.

03. Through the medium of present writ petition,

the petitioner is seeking this Court to issue a writ of

habeas corpus under article 226 of the Constitution of

India for restoring personal liberty to the petitioner

deprived and denied by operation of an order No.

DMS/PSA/44/2024 dated 3rd of December, 2024

passed by the respondent No.2-District Magistrate,

Srinagar under the aegis of Jammu & Kashmir Public

Safety Act, 1978 which resulted in the petitioner

getting detained on 4th of December, 2024 and

confined to prison in the District Jail, Poonch wherein

he is serving his detention custody.

04. The institution of the present writ petition

took place on 16th of December, 2024 being filed

through Mst. Nayeem Bano, the wife of the petitioner.

05. The respondent No.2-District Magistrate,

Srinagar came to exercise jurisdiction under Section 8

of the Jammu & Kashmir Public Safety Act, 1978 in

ordering the preventive detention of the petitioner

when the Senior Superintendent of Police (SSP),

Srinagar, by virtue of a communication No. LGL/Det-

PSA/2024/29877-80 dated 12th of November, 2024,

came to serve a dossier against the petitioner thereby

seeking the preventive detention of the petitioner on

the basis of the purported facts and circumstances

spelled out in the said dossier.

06. In his two-and-a-half-page dossier, the

Senior Superintendent of Police (SSP), Srinagar came

to say that as per reports received from reliable

sources, the petitioner from his very early age became

influenced by radical ideology and came into contact

with active terrorists and Over Ground Workers

(OGWs) of TRF who motivated him to work for the

outfit as an Over Ground Worker (OGW) for providing

logistic support. In this alleged state of engagement,

the petitioner is said to have started sharing all

sensitive information regarding movement of police

and security forces in the area and in a short span of

time becoming a staunch Over Ground Worker (OGW)

of the area, besides preaching/ spreading/

propagating terrorist ideology in the area and

motivating youth for joining unlawful activities in the

area.

07. In order to showcase the petitioner in the

said profile, the petitioner's involvement in FIR No.

127/2022 registered by the Police Station, Parimpora

under Sections 153-A, 153-B and 505 of the Indian

Penal Code read with Sections 16/18/20/39 of the

Unlawful Activities (Prevention) Act, 1967 came to be

highlighted and referred with a simultaneous mention

that in the said case, the petitioner stood bailed out

without disclosing the context and contents of the bail

order.

08. Keeping in view the assembly elections of

2024 in the Union Territory of Jammu & Kashmir, the

petitioner is said to have been subjected to

proceedings under Sections 170/126 of the Bhartiya

Nagarik Suraksha Sanhita (BNSS), 2023 by the Police

Station, Sangam. The petitioner is said to have been

bound down on 3rd of August, 2024 and 6th of

September, 2024 notwithstanding which the

petitioner was still reckoned to be indulgent in

prejudicial activities related to the security of the

Union Territory of Jammu & Kashmir warranting his

detention under the Jammu & Kashmir Public Safety

Act, 1978.

09. Following the script so served by the Senior

Superintendent of Police (SSP), Srinagar in terms of

his dossier, the respondent No.2-District Magistrate,

Srinagar penned down the purported grounds of

detention wherefrom a subjective satisfaction was

drawn by him to pass the detention order No.

DMS/PSA/44/2024 dated 3rd of December, 2024

which came to be executed on 6th of December, 2024.

10. The preventive detention order so issued by

the respondent No.2-District Magistrate, Srinagar

came to be approved by the Home Department,

Government of Union Territory of Jammu & Kashmir

by issuance of Government Order No. Home/PB-

V/2297 of 2024 dated 6th of December, 2024 while

forwarding the case for opinion of the Advisory Board.

11. On the same very day, i.e., 6th of December,

2024, the petitioner had come to be detained by

Parvaiz Ahmad, ASI of Police Station Nowhatta,

Srinagar who delivered 45-leaves compilation to the

petitioner comprised of detention warrant (01 leaf),

grounds of detention (02 leaves), notice of detention

(01 leaf), dossier (03 leaves) and other record (34

leaves).

12. The petitioner is said to have been explained

the grounds of detention and the contents of the

detention warrant and also apprised about his right of

making representation to the Government as well as

to the respondent No.2-District Magistrate, Srinagar

against his preventive detention.

13. On behalf of the petitioner, his son-Dawood

Ahmad Bhat came to address a written representation

to the Deputy Commissioner, Shaheed Gunj, Srinagar

seeking revocation of the preventive detention order

against his father.

14. As the said representation was also

addressed to the Divisional Commissioner, Kashmir,

so from the office of the Divisional Commissioner,

Kashmir, vide a communication No. DivCom/RA/

Misc/7617315/2024 dated 11th of December, 2024,

copy of said written representation came to be

forwarded to the respondent No.2-District Magistrate,

Srinagar thereby inviting the attention of the

respondent No. 2 -District Magistrate, Srinagar to look

into the matter and take necessary action under the

relevant provisions of the law governing the field

meaning thereby that in first half of December, 2024,

the respondent No.2-District Magistrate, Srinagar was

very much possessed of the representation so made

by the petitioner through his son.

15. The petitioner, through the medium of the

present writ petition, has assailed his preventive

detention alleging it to be sheer abuse of preventive

detention jurisdiction vested with the respondent

No.2-District Magistrate, Srinagar.

16. In response to the writ petition, the

respondents came to submit the counter affidavit by

way of ritual like reply submitted on 18th of March,

2025.

17. In terms of an order dated 24th of March,

2025, this Court came to direct Mr Jehangir Ahmad

Dar, learned Government Advocate to produce the

record related to alleged issuance of orders dated 13th

of August, 2024 and 6th of September, 2024 on the

basis of which the petitioner is said to have been

bound down under Sections 170/126 of the Bhartiya

Nagarik Suraksha Sanhita (BNSS), 2023 as

mentioned in the dossier as well as in the grounds of

detention.

18. Despite repeated opportunities, said record

did not come forward in terms of its production

meaning thereby that there was no such record

available at the end of the concerned Magistrate in

terms whereof the recital of the fact was made that

the petitioner was bound down under Sections

170/126 of the Bhartiya Nagarik Suraksha Sanhita

(BNSS), 2023 on 13th of August, 2024 and 6th of

September, 2024, otherwise were serving as pretext

for initiating preventive detention jurisdiction against

the petitioner eventually resulting in issuance of

preventive detention order against the petitioner

thereby depriving him of his personal liberty.

19. It is in the aforesaid backdrop that the

adjudication of the present writ petition is coming to

take place.

20. Upon examination of the detention record

produced from the end of the respondents, a fact

came out aloud that by reference to the petitioner's

involvement in FIR No. 127/2022 dated 28th of May,

2022, the petitioner had been granted bail in terms of

an order dated 31st of July, 2024 by the Court of

learned Additional Sessions Judge (TADA/POTA),

Srinagar on the terms and conditions as set out in the

said order. The grand of bail in favour of the petitioner

by the Court of learned Additional Sessions Judge

(TADA/POTA), Srinagar was merit based.

21. In his dossier, the Senior Superintendent of

Police (SSP), Srinagar least bothered to call for a

certified copy of the bail order dated 31st of July, 2024

passed by the Court of learned Additional Sessions

Judge (TADA/POTA), Srinagar to examine as to under

which facts and circumstances the Court of learned

Additional Sessions Judge (TADA/POTA), Srinagar felt

persuaded to grant bail in favour of the petitioner. So

much so, from the text of the dossier, it is not even

forth coming as to whether in reference to FIR No.

127/2022 any final police report under Section 173 of

the Code of Criminal Procedure (Cr. P. C.), 1973 came

to be presented before the competent court of law or

not.

22. The most patent anomaly which comes forth

staring at the preventive detention of the petitioner is

the omission on the part of the respondent No.2-

District Magistrate, Srinagar in forwarding the

representation made by the son of the petitioner

which had landed in the hands of the respondent

No.2-District Magistrate, Srinagar through the

medium of Divisional Commissioner, Kashmir in

terms of communication No. DivCom/RA/Misc/

7617315/2024 dated 11th of December, 2024.

23. It defies common sense that as against the

said communication No. DivCom/RA/Misc/7617315/

2024 dated 11th of December, 2024 of the office of

Divisional Commissioner, Kashmir addressed to

respondent No.2-District Magistrate, Srinagar

forwarding the written representation related to the

petitioner, the respondent No.2-District Magistrate,

Srinagar took more than one and a half month to

address a communication No. DMS/JUD/MISC/

2024/2277 dated 6th of February, 2025 to the

Principal Secretary to Government, Home

Department, Union Territory of Jammu & Kashmir

thereby apprising the Home Department, Government

of Union Territory of Jammu & Kashmir about the

written representation received on behalf of the

petitioner relating to his plea for revocation of the

detention order.

24. Thus, for sure the Advisory Board was taken

for a ride by suppression of fact that there was no

representation made on behalf of the petitioner

against his preventive detention for the purpose of

enabling the Advisory Board to consider the

representation.

25. This singular omission on the part of the

respondent No.2-District Magistrate, Srinagar is

nothing but a blatant negation of the constitutional

right of the petitioner in the matter of representation

against his preventive detention literally knocking

down the said right of the petitioner as if it was meant

to be of no urgency for the respondent No.2-District

Magistrate, Srinagar to act with due dispatch and

forward the same to the Government or for that

matter to the Advisory Board.

26. Another factor vitiating the preventive

detention of the petitioner is that the preventive

detention against the petitioner seems to have been

resorted only to out-maneuver the indulgence of the

Court of learned Additional Sessions Judge

(TADA/POTA), Srinagar in granting bail to the

petitioner in terms of order dated 31st of July, 2024.

27. In his dossier, the Senior Superintendent of

Police (SSP), Srinagar is found missing to mention

that in case if the petitioner was being found

indulgent in alleged activities, post his release on bail,

then why condition No.(b) in the bail order was not

cited to seek cancellation of the bail so granted in

favour of the petitioner. Condition No. (b) of the said

bail order related to the petitioner is reproduced

herein next: "the accused person/ applicant shall not

in any way misuse his liberty nor shall he get in touch

with any of the witnesses or try to influence the

course investigation".

28. So much so, condition Nos. (f) and (g) were of

equal weight placed by the Court of learned Additional

Sessions Judge (TADA/POTA), Srinagar to ensure that

the bail granted in favour of the petitioner is not

subjected to any abuse. The said two conditions are

"(f) That the accused person/ applicant shall disclose/ provide his mobile numbers issued in his name along with telecom network to Investigating Officer/ SHO of concerned police station; and

(g) That the accused person/ applicant shall neither use any secret/

encrypted messaging apps or any proxy network (viz. VPNS) to remain anonymous and circumvent provisions of Indian Telegraph Act and Indian Wireless Act and orders/ restrictions issued thereunder nor provide any type of telecommunication facility from his number or device to other persons through hotspot, Wi-Fi, etc."

29. In the light of the aforesaid facts and

circumstances of the case, the preventive detention of

the petitioner in the present case is, thus, held to be

an illegal exercise of jurisdiction on the part of the

Senior Superintendent of Police (SSP), Srinagar as

well as on the part of respondent No.2-District

Magistrate, Srinagar, consequently, rendering it

unsustainable deserving to be set aside.

30. Resultantly, the preventive detention order

No. DMS/PSA/44/2024 dated 3rd of December, 2024

passed by respondent No.2-District Magistrate,

Srinagar read with consequent approval/