Jammu & Kashmir High Court - Srinagar Bench
Mohammad Ashraf Bhat vs Union Territory Of J&K And Ors on 5 May, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU& KASHMIR AND LADAKH
AT SRINAGAR
HCP No.282/2024
Reserved On:11thof April, 2025.
Pronounced On: 5thof May, 2025.
Mohammad Ashraf Bhat
... Petitioner(s)
Through: -
Mr R. A. Jan, Senior Advocate with
Mr Adil Mushtaq, Advocate;
Mr Z. A. Qurashi, Senior Advocate with
Ms RehanaFayaz, Advocate; and
Mr Mohammad Younis, Advocate.
V/s
Union Territory of J&K and Ors.
... Respondent(s)
Through: -
Mr Jehangir Ahmad Dar, Government Advocate.
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
preventive detention of the petitioner as produced by the
respondents.
03. "The history of liberty has largely been the history of
the observance of procedural safegurads" is a famous quote of
Justice Felix Frankfurter, Judge Supreme Court of United States
with a perpetual meaning and pregnant with a message that
personal liberty of a citizen/subject is a 'Handle with Care and
Caution' tag in case it is intended to be curtailed on preventive
side intent and end of law.
04. The petitioner, who is a practicising advocate aged 71
years, has come to suffer preventive detention custody in terms of
an order No. DMS/PSA/18/2024 dated 16th of July, 2024 passed
by the respondent No.2-District Magistrate, Srinagar acting in
exercise of power under section 8 of the Jammu & Kashmir Public
Safety Act, 1978 by reckoning the petitioner's personal liberty and
his alleged reported activities to be prejudicial to the maintenance
of security of the State. In terms of said order, the respondent
No.2-District Magistrate, Srinagar directed the petitioner's
detention and consequent detainment in the District Jail, Kathua.
05. The petitioner was taken into preventive custody when
the detention warrant came to be executed on 17th of July, 2024 by
PSI-Mubarak Ahmad Shah, Sub-Inspector Police Station, Sadar,
Srinagar.
06. The institution of the present writ petition, seeking
setting aside of his preventive detention custody by quashing of
preventive detention order, came to take place on 12th of August,
2024 by the petitioner acting through his wife-Mst. Asmat
Hagroo.
07. A case for seeking preventive detention of the
petitioner under the Jammu & Kashmir Public Safety Act, 1978
came to be initiated by the Senior Superintendent of Police (SSP),
Srinagar who, vide his letter No. LGL/Det-PSA/2024/14353-55
dated 15th of July, 2024, submitted a dossier to the respondent
No.2-District Magistrate, Srinagar thereby reporting the alleged
activities of the petitioner, being in state of freedom of movement
and personal liberty, to be prejudicial to the maintenance of the
security of the State.
08. Text and context of said dossier needs to be reproduced
as it is, on the basis of which the Senior Superintendent of Police
(SSP), Srinagar solicited slapping of preventive detention upon
the petitioner. The dossier reads as under:
"Name: Mohammad Ashraf Bhat.
Parentage: Late Ghulam Hassan Bhat.
Residence: Mughal Mohalla Chattabal A/P Rawalpora
near Boys Higher Secondary Mohalla
Rawalpora.
Category: General Secretary of Kashmir High Court
Bar Association.
Age: 70 years.
The subject was born at Mughal Mohalla Chattabal
Srinagar in the year 1953 and is presently putting up
atRawalpora Srinagar. The subject graduated in law. Soon after
the completion of Law degree, subsequently subject started
practicing as lawyer as a regular member of High Court Bar
Association Kashmir. The subject came to be nominated as
General Secretary of high Court Kashmir Bar Association,
Srinagar, having affiliated with APHC-G. The subject is
known for his secessionist ideology and its anti-national
propagation among like-minded lawyers and general masses.
The subject in the capacity of General Secretary of High
Court Bar Association (HCBA) and has been instrumental in
reviving of HCBA and to provide a platform to secessionist
and terrorists. It was provided in adopted constitution of
Kashmir High Court Bar Association to provide support to the
terrorist movement till objective of secessionist of UT of J&K
from Union of India is achieved. The subject is still continuing
his activities for propagating the erstwhile adopted constitution
of JKHCBA to support the terrorist movement to achieve
unlawful desired object of secessionism under the influence of
Advocate Abdul Qayoom, a staunch supporter of terrorist and
secessionism.
The subject due to his hardcore secessionist ideology
was very close to secessionist organizations and aided
secessionist elements including Late Syed Ali Shah Geelani to
formulate protest calendars during unrest of 2008, 2010 and
2016. The subject has also remained associated with the
Peoples League and was arrested in the year 1989. He was
tasked by APHC (G) to defend the cases of secessionist and
terrorists sub-judice before different Courts which made him
earn a prominent position within the secessionist rank. Subject
is responsible for organizing anti-national seminars, rallies
formulating secessionists programs aimed with to create anti-
national atmosphere in the valley.
The subject post-abrogation of Article 370 in
consultation with the mentors across the border was advocating
to led many agitations and was hell bent upon to create a
situation which could jeopardize public order of UT of J&K
was detained under PSA in year 2019. However, after his
release from the detention he did not mend his ways and
continued propagating secessionism and terrorist.
In 2002, subject had gone to Pakistan with 03 other
Kashmir Advocates namely Ghulam Nabi Shaheen, G. N.
Hagroo and Mohd. Amin Bhat to attend a seminar on "Peace
through Law" organized by Pakistan Bar Association at
Islamabad. Reportedly, during their meeting with General
Parvaiz Musharaff, they were warned to work strictly as per
ISI directions and not to utter a word about peace in Kashmir.
Since them, the subject has loyally toed the Pakistan line in
Kashmir. He has remained staunch support separatism in
Kashmir. The brother of the subject namely Advocate
Mohamad Younis S/o Ghulam Hassan Bhat R/o Mughal
MohallaChattabal is a released locally trained terrorist of the
proscribed outfit Hizbul Mujahideen who was arrested by
Security Forces in 1991 and released after two years of
detention.
The subject remained active in mobilizing anti-national
protests against the execution of death penalty inflicted by
Hon'ble Court of Law against the hanging of Afzal Guru and
delivered sermons that he was hanged without affording him
the chance of a fair trial exposed Indian Judicial System as
well as Kashmir's Pro-Indian Camp.
There are credible and technical reports received with
respect to the subject from various agencies which are
suggestive of the fact that the subject has been facilitating
terrorists/OGWs by way of legal recourse to get out of the
ambit of law and subject has visited number of jails all over
India and had assured terrorists/secessionist lodged there that
he will facilitate the release of such terrorists, this was done
only to rise the circle of terrorists/secessionists groups. The
subject being an Advocate practicing in High Court and
District Court Srinagar is providing his services as Advocate to
Terrorists, OWGs (accused persons) involved in UAPA cases.
The subject has always trying to find ways and means to
devise programs/seminars/calendars which have been and are
direct threat to the security of State in the past, as well because
the subject is holding discreet meet with his likeminded
lawyers and masses to review the secessionism in the valley
District Srinagar particularly. The subject as per the
credible/confidential sources and technical inputs is direct
threat to security of state at present and assessing his past
activities. The subject, being a staunch antinational element
cannot see peace returning in UT of J&K and as such always in
search of opportunity to mobilize the ways and means having
bearing on security of State and as such has been found to have
secretly devised programs for creating large scale violence
which in all possibilities will have bearing on the security of
State.
The subject whose audacity can be gauged from the
activities he has carried out in past and is trying to revive is a
potential threat to the security of State, if the subject is allowed
to remain at large, there are more than compelling reasons that
once the subject, is allowed to remain at large at this point of
time, he is going to indulge in activities which are prejudicial
to security of State.
Therefore, taking a wholesome view of the likely impact
of the activities of the subject upon the overall scenario, if the
subject gets liberty to move freely at this point of time, there is
very chance that the subject will devise a plan with his
likeminded advocates and masses which in all possibilities will
be a threat to the security of State. In order to safety of security
of State and keeping the compelling circumstances mentioned
above, the detention of subject under provisions of PSA 1978,
for maximum period at this stage has become imperative.
It is as such requested, that a warrant of detention under
provisions of J&K Public Safety Act 1978 to prevent him from
acting in any manner prejudicial to Security of State may
kindly be issued against subject and sent to this office for early
execution."
09. Acting upon the said dossier, the respondent No.2-
District Magistrate, Srinagar formulated the grounds of detention
on the purported basis whereof the respondent No.2-District
Magistrate Srinagar came to hold that the petitioner's personal
liberty warranted to be curtailed in order to prevent him from
acting in a manner prejudicial to the security of the State.
10. The respondent No.2-District Magistrate, Srinagar,
vide communication No. DMS/PSA/JUD/1003-1006/2024 dated
16th of July, 2024, addressed to the petitioner meant to notify him
about the passing of detention order against him and his
impending detention to be carried out pursuant thereto and further
registering a reminder to the petitioner about his option to exercise
his right to make a representation against the order of detention be
it to the respondent No.2-District Magistrate, Srinagar and/ or to
the Government as may be desired by the petitioner.
11. Simultaneously, the respondent No.2-District
Magistrate, Srinagar also notified the Principal Secretary to
Government, Home Department, Union Territory of Jammu &
Kashmir vide letter No. DMS/PSA/JUD/1007-1008/2024 dated
16th of July, 2024 about passing of detention order against the
petitioner by the respondent No.2-District Magistrate, Srinagar.
12. The actual detention of the petitioner taking place on
17th of July, 2024 was accompanied with handing over of eight
(08) leaves compilation to the petitioner by the Superintendent of
Police, District Jail, Kathua attended with the grounds of detention
being read over and explained to the petitioner.
13. Upon lodgment of the petitioner in the District Jail,
Kathua, the Superintendent, District Jail, Kathua, vide his
communication No. DJK/DS/4333-38 dated 18th of July, 2024,
apprised the Financial Commissioner (Additional Chief
Secretary), Government of Union Territory of J&K, Home
Department about the detention of the petitioner having been
carried out and his detainment in the District Jail, Kathua having
taken place.
14. Upon execution of detention warrant resulting in taking
into custody the person of the petitioner, the Station House Officer
(SHO), Police Station Sadar, vide his letter No. SDR/PSA/24/04
dated 19th of July, 2024, apprised the Senior Superintendent of
Police (SSP), Srinagar about the fact of the petitioner being taken
into preventive detention custody.
15. Senior Superintendent of Police (SSP), Srinagar at his
end, vide his letter No. LGL/PSA-3717/24/14828-31 dated 20th of
July, 2024, apprised the Principal Secretary to Government, Home
Department, Union Territory of Jammu & Kashmir about the
execution of the detention warrant upon the petitioner.
16. The preventive detention order No. DMS/PSA/80/2024
dated 16th of July, 2024 came to be approved by the Home
Department, Government of Union Territory of Jammu &
Kashmir vide Government Order No. Home/PB-V/1503 of 2024
dated 22nd of July, 2024 in terms whereof the determination of
period of detention of the petitioner under the preventive detention
custody was made subject to the receipt of opinion of the
Advisory Board.
17. The petitioner, acting through his wife, submitted a
written representation dated 24th of July, 2024 addressed to the
Chairman, Advisory Board thereby detailing the facts and
circumstances on the basis of which the revocation of the
detention order was solicited.
18. In addition, the petitioner, through his wife, also
submitted written representation dated 24th of July, 2024 to the
respondent No.2-District Magistrate, Srinagar duly received in the
office of District Magistrate, Srinagar in terms whereof a plea was
made for revocation of the preventive detention against the
petitioner.
19. The preventive detention file of the petitioner is said to
have been sent and submitted for its opinion to the Advisory
Board under the Jammu & Kashmir Public Safety Act, 1978 on
24th of July, 2024.
20. The Deputy Secretary to Government, Home
Department, Union Territory of Jammu & Kashmir, vide his letter
No. Home/PB-V/417-2024(7527085) dated 26th of July, 2024,
addressed to the Chairman, Advisory Board also forwarded the
written representation of the petitioner for consideration.
21. In order to avail his right of representation against his
preventive detention in an effective manner, the petitioner, vide a
handwritten application dated 1st of August, 2024 addressed to
Principal Secretary to Government, Home Department, Union
Territory of Jammu & Kashmir, asked for personal hearing before
the Advisory Board.
22. The petitioner being in state of custody handed over his
handwritten application dated 1st of August, 2024 to the
Superintendent, District Jail, Kathua obviously for the purpose of
its placement before the Principal Secretary to Government, Home
Department, Union Territory of Jammu & Kashmir.
23. Superintendent, District Jail, Kathua, acting at his end
vide letter No. DJK/MH/4720 dated 2nd of August, 2024
addressed to the Director General Prisons, Jammu & Kashmir,
Srinagar, forwarded said handwritten application of the petitioner
seeking right of personal hearing before the Advisory Board.
24. Meanwhile, the Advisory Board under the Jammu &
Kashmir Public Safety Act, 1978 came to submit its opinion
report on file No. Home/PB-V/417/2014 dated 5th of August, 2024
in terms whereof the preventive detention of the petitioner was
held to be based upon sufficient grounds.
25. The Advisory Board in its opinion report came to refer
about the fact of the written representation of the petitioner being
considered but found to be without any substance. The Advisory
Board in express terms came to observe that the petitioner had not
registered any request for personal hearing.
26. Staff Officer to the Director General Prisons, Jammu &
Kashmir, Srinagar, vide a letter No. DS/PSA correspondence SJ
Reasi/2024 (7423072) 3764 dated 6th of August, 2024 addressed
to the Principal Secretary to Government, Home Department,
Union Territory of Jammu & Kashmir forwarded the letter No.
DJK/MH/4270 dated 2nd of August, 2024 of the Superintendent,
District Jail, Kathua along with handwritten application dated 1st
of August, 2024 of the petitioner seeking personal hearing before
the Advisory Board.
27. Thereafter, the Deputy Secretary to Government,
Home Department, Union Territory of Jammu & Kashmir, vide
letter No. Home/PB-V/417/2024/7527085 dated 8th of August,
2024 addressed to the respondent No.2-District Magistrate,
Srinagar, conveyed the fact of rejection of petitioner's
representation. Copy of this communication was also meant to be
forwarded to the Superintendent, District Jail, Kathua for the sake
of conveying to the petitioner about the rejection of his
representation against his preventive detention.
28. On the other hand, following the Advisory Board's
opinion confirming the petitioner's preventive detention,
confirmation of the petitioner's detention came to be ordered vide
Government Order No. Home/PB-V/1638 of 2024 dated 8th of
August, 2024 and thereby settling the period of the petitioner's
detention custody at the first instance for six months to be kept
detained in District Jail, Kathua.
29. The Deputy Secretary to Government, Home
Department, Union Territory of Jammu & Kashmir, vide his letter
No. Home/PB-V/417/2024(7527085) dated 20th of August, 2024
addressed to the Additional Director General of Police, CID, J&K,
forwarded communication No. DS/PSA correspondence SJ
Reasi/2024(7423072) 3764 dated 6th of August, 2024 of the Staff
Officer to Director General, Prisons, Jammu &Kashmir.
30. The respondent No.2-District Magistrate, Srinagar vide
his letter No. DMS/JUD/Misc/2024/1785 dated 11th of October,
2024 addressed to the Principal Secretary to Government, Home
Department, Union Territory of Jammu & Kashmir, forwarded the
written representation of the petitioner seeking revocation of his
detention which was submitted by the respondent No.2-District
Magistrate, Srinagar.
31. The Deputy Secretary to Government, Home
Department, Union Territory of Jammu & Kashmir, vide his letter
No. Home/PB-V/417-2024-7527085 dated 16th of October, 2024
addressed to the respondent No.2-District Magistrate, Srinagar,
apprised him about the fact that the petitioner's written
representation against his preventive detention stood already
rejected as conveyed vide letter No. Home/PB-
V/417/2024/7527085 dated 8th of August, 2024.
32. From the office of Additional Director General of
Police, CID, J&K, Senior Superintendent of Police (A), vide letter
No. CID/SSP(A)/BR/M-03/2019/SGR/14278 dated 29th of
October, 2024 addressed to Principal Secretary to Government,
Home Department, Union Territory of Jammu & Kashmir,
recommended the rejection of the petitioner's representation,
whereafter the Deputy Secretary to Government, Home
Department, Union Territory of Jammu &Kashmir, vide his letter
No. Home/PB-V/417/2024/7527085 dated 28th of October, 2024
addressed to respondent No.2-District Magistrate, Srinagar,
conveyed the fact of rejection of the petitioner's representation.
33. The Additional District Magistrate, Srinagar vide his
letter No. DMS/JUD/Misc/2024/2203-2204 dated 26th of
November, 2024 apprised the Senior Superintendent of Police
(SSP), Srinagar about the disposal of the petitioner's
representation.
34. Vide Government Order No. Home/PB-V/99 of 2025
dated 14th of January, 2025, the petitioner's period of detention
came to be extended by period of another six months w.e.f. 17 th of
January, 2025 to 16th of July, 2025 which period is still in
currency and in the course of which the adjudication of this writ
petition has come up.
35. The petitioner in his writ petition has assailed his
preventive detention custody on the grounds as set out in para 8
(A) to (J).
36. The petitioner challenges his preventive detention
being procured by suppression of facts at the end of the Senior
Superintendent of Police (SSP), Srinagar who is said to have
withheld true and full disclosure of facts of the petitioner's
previous preventive detention ordered in year 2019 under the
Jammu & Kashmir Public Safety Act, 1978 resulting in its setting
aside and quashment by a judgment dated 16th of March, 2020 in
WP (Crl) No. 573/2019.
37. The petitioner has annexed copy of judgment dated 16 th
of March, 2020 along with his writ petition as Annexure-V page
Nos. 26 to 30. In the said writ petition, the Superintendent of
Police, Srinagar figured as respondent No.5 and was, thus, meant
to be fully cognizant of previous preventive detention of the
petitioner having taken place earlier in 2019 but consequently
getting quashed.
38. It is pleaded in the grounds of challenge that the second
time detention of the petitioner, now being under challenge, is
premised on the same basis as was the preventive detention
effected in the year 2019 vide Order No. DMS/PSA/129/2019
dated 26th of September, 2019.
39. It is pleaded in the grounds of challenge to his
preventive detention custody that from 2019 onwards, there is no
activity whatsoever reflected and reported in the dossier by the
Senior Superintendent of Police (SSP), Srinagar on the basis of
which the present preventive detention custody of the petitioner
could come to take place and, therefore, second time preventive
detention of the petitioner is resting upon the same grounds
without being first disclosed and briefed to the respondent No.2-
District Magistrate, Srinagar about first detention order.
40. It is further pleaded that once the preventive detention
of the petitioner effected in the year 2019 came to be quashed by
judgment dated 16th of March, 2020 passed by this Court which
remained unchallenged, all the preceding references which led
upto passing of preventive detention order No.
DMS/PSA/129/2019 dated 26th of September, 2019 against the
petitioner were to be of no worth even for reference sake much
less for reliance sake but still in the dossier submitted by the
Senior Superintendent of Police (SSP), Srinagar against the
petitioner to the respondent No.2-District Magistrate, Srinagar,
who thereupon formulated grounds of detention, all the self-same
references were borrowed and imported in the grounds of
detention on the basis of which the impugned second time
detention order came to be passed subjecting the petitioner to
suffer loss of personal liberty by the preventive detention mode.
41. The petitioner has also assailed his preventive
detention custody on the ground that his representation made
through his wife has remained unconsidered and un-responded.
42. In addition, though not pleaded in the writ petition but
came to be argued by the learned counsel for the petitioner that
petitioner's request for personal hearing duly submitted by him in
terms of his handwritten application dated 1st of August, 2024
was made to go waste by the Jail Authorities and also by the
Home Department, Government of Union Territory of Jammu &
Kashmir which resulted in denying him personal hearing before
the Advisory Board in connection with consideration of his
written representation submitted to the Advisory Board seeking
revocation of his preventive detention.
43. The petitioner has relied upon the following judgments
to supplement his submissions in seeking quashment of his
preventive detention custody:
i. 1975 (II) SCC 4;
ii. 1979 (V) SCC 559;
iii. 1980 (IV) SCC 544;
iv. 1987 (VII) SCC 22;
v. 1989 (IV) SCC 741;
vi. 2006 (IV) SCC 796;
vii. 2023 AIR SC 4273;
viii. 2023 JKJ (II) 394; and
ix. 2023 JKJ (VI) 77.
44. The petitioner has also agitated, as a ground of
challenge, the fact that the dossier submitted by the Senior
Superintendent of Police (SSP), Srinagar to the respondent No. 2-
District Magistrate, Srinagar was not provided to him and, as
such, the material on the basis of which the dossier was framed
was also not provided to him.
45. In the counter affidavit to the writ petition, the
respondents in general and respondent No.2-District Magistrate,
Srinagar in particular has come forward with preliminary
objections as well as parawise reply on the basis of which the
dismissal of the writ petition filed by the petitioner is being
sought.
46. In the preliminary objections, it is being stated that no
legal, fundamental or statutory right of the petitioner has been
violated and, therefore, the writ petition merits outright rejection.
It is further objected by the answering respondents, with respect to
the maintainability of the writ petition, that the petitioner has not
approached the Court with clean hands and the contentions made
in the writ petition are baseless.
47. Continuing with their preliminary objections, the
respondents come forward with recitals as to the jurisdictional
basis of preventive detention jurisdiction and in that regard draw
reference from the judgments of the Hon'ble Supreme Court in the
cases of 'Haradhan Saha v. State of West Bengal, 1975 (III)
SCC 198'; 'The Secretary to Government, Public (Law and
Order-F) &Anr. v. Nabila &Anr.', '2015 (XII) SCC 127; Debu
Mahato v. State, 1974 AIR (SC) 816'; and 'Ashok Jumar v.
Delhi Administration and Ors., 1982 AIR (SC) 1143.'
48. In order to provide insulation to the preventive
detention of the petitioner as ordered by respondent No.2-District
Magistrate, Srinagar, the respondents in their reply have come
forward claiming that all the statutory requirements and
constitutional guarantees were fulfilled and complied with in
ordering and effecting the preventive detention of the petitioner
keeping in mind the very object of law of preventive detention.
49. It is further asserted that the detention order and the
grounds in support thereof were not only made available to the
petitioner but also read over and explained to the petitioner
besides apprising him about his right of making a representation
against his preventive detention. Further, in order to salvage the
basis of preventive detention imposed upon the petitioner, the
respondents in their counter affidavit have come forward stating
that even if on one of the grounds of detention the preventive
detention of the petitioner is rendered questionable, the other
grounds can suffice and serve the purpose to lend validity to the
preventive detention of the petitioner.
50. On parawise reply side, the respondents have come up
with a novelty of the factual background narrative without
bothering to deal with the parawise reply of the assertions and
averments made in the writ petition filed by the petitioner.
51. This Court is at loss to discern the reluctance on the
part of the respondent No.2-District Magistrate, Srinagar in
coming forward with parawise reply in the counter affidavit to the
averments and assertions made in the writ petition by the
petitioner.
52. In the factual background as set out in the counter
affidavit, there is a very muted reference of one liner about the
earlier preventive detention case of the petitioner dating back to
2019 and its outcome, and also as to how the petitioner came to be
apprised about the outcome of consideration of his written
representation made for seeking revocation of his preventive
detention.
53. There is nothing said or suggested in the counter
affidavit by the respondent No.2-District Magistrate, Srinagar as
to why the petitioner's plea for seeking personal hearing before
the Advisory Board was made to suffer waste in the process of
official correspondence and, in the meanwhile, the Advisory
Board was let to opine on the preventive detention of the
petitioner without personal hearing accorded to the petitioner.
54. Upon consideration of all facts and circumstances with
respect to the case in hand drawn from the writ petition, the
documents therewith, the counter affidavit without any documents
therewith and the detention record produced, the preventive
detention of the petitioner is found to be seriously faulty and
flawed.
55. The first and foremost flaw is the stone like silence on
the part of the Senior Superintendent of Police (SSP), Srinagar
and also of the respondent No.2-District Magistrate, Srinagar in
putting out in full with respect to the petitioner's preventive
detention effected in the year 2019. The petitioner had earned
quashment of his first preventive detention custody through the
medium of a writ petition WP (Crl) No. 573/2019 in which the
Senior Superintendent of Police (SSP), Srinagar and the District
Magistrate, Srinagar figured as respondents No. 4 and 5. The
adjudication of said 2019 writ petition had taken place not in an
ex-parte manner for affording said two officers an excuse to plead
ignorance. First preventive detention of the petitioner was quashed
on merits. This Court is clueless to decipher as to why in his
dossier, the Senior Superintendent of Police (SSP), Srinagar
missed out in documenting in his dossier the details and dossier of
the petitioner's preventive detention effected in the year 2019 and
its consequent quashment.
56. Likewise, the respondent No.2-District Magistrate,
Srinagar, if had acted with due diligence at his end, would have
come across with a fact from the records of his office that the
petitioner was subjected to preventive detention in the year 2019
which came to be set aside by the intervention of the High Court
of Jammu & Kashmir and Ladakh. This omission is too serious to
be taken casually much less by this Court as being the guardian of
the fundamental rights of a citizen of India which the petitioner
undoubtedly is.
57. The preventive detention of the petitioner is further
flawed because of the petitioner being kept uninformed about the
fate of his written representation which was made not only to the
Advisory Board but also to the respondent No.2-District
Magistrate, Srinagar and to the Principal Secretary to
Government, Home Department, Union Territory of Jammu &
Kashmir. There is found no communication on the detention
record file of the petitioner, as produced from the respondents'
end, to confirm that the petitioner was duly notified with respect
to the rejection of his written representation against his preventive
detention.
58. In the present writ petition, the respondent No.3 is
Superintendent of Police, District Jail, Kathua. There is no counter
affidavit from his end nor is there any averment in the counter
affidavit filed by the respondent No.2-District Magistrate,
Srinagar by reference to the respondent No.3-Superintendent of
Police, District Jail, Kathua that the petitioner was duly notified
about the rejection of his written representation which was
otherwise conveyed to the respondent No.3.
59. These two grounds are self-sufficient by themselves to
render the preventive detention of the petitioner bad in the eyes of
law.
60. The exercise of preventive detention jurisdiction is a
double-edged sword which is unsparing both for the hand which
wields it and the hand which bears its blow. If mishandled by the
wielder of said sword, then the effect stays on the side of the
wielder whereas the relief passes on to the side of the person
aimed to suffer its blow, and which precisely is the situation in
hand before this Court in the context of the present case.
61. In the case of "Ayya @ Ayub Vs State of UP and
another," (1989)1 SCC 374, the Hon'ble Supreme Court of India
has delved into the essence of preventive detention jurisdiction
and its sensitivities. Paras 11,12, 13, 14, 15, 16, 17, 18, 19 & 20
are worth reference herein which are reproduced as under:-
"11. Personal liberty protected under Article 21 of the Constitution is
held so sacrosanct and so high in the scale of constitutional values that
this Court has shown great anxiety for its protection and wherever a
petition for writ of habeas-corpus is brought-up, it has been held that the
obligation of the detaining-authority is not confined just to meet the
specific-grounds of challenge but is one of showing that the impugned
detention meticulously accords with the procedure established by law.
Indeed the English Courts a century ago echoed the stringency and
concern of this judicial vigilance in matters of personal liberty in the
following words:
Then comes the question upon the habeas corpus. It is a
general rule, which has always been acted upon by the Courts of
England, that if any person procures the imprisonment of another
he must take care to do by steps, all of which are entirely regular,
and that if he fails to follow every step in the process with
extreme regularity the Court will not allow the imprisonment to
continue."
12. It has been said that the history of liberty has largely been the
history of observance of procedural safeguards. The procedural sinews
strengthening the substance of the right to move the court against
executive invasion of personal liberty and the due dispatch of judicial-
business touching violations of this great is stressed in the words of Lord
Dinning:
Whenever one of the King's Judges takes his seat, there is
one application which by long tradition has priority over all
others. Counsel has but to say 'My Lord, l have an application
which concerns the liberty of the subject' and forth-with the
Judge will put all other matters aside and hear it. It may be an
application for a writ of habeas corpus, or an application for bail,
but, whatever form it takes, it is heard first.
13. Personal liberty, is by every reckoning, the greatest of human
freedoms and the laws of preventive- detention are strictly construed and
a meticulous compliance with the procedural safeguards, however
technical, is strictly insisted upon by the courts. The law on the matter did
not start on a clean state. The power of courts against the harsh
incongruities and unpredictabilities of preventive detention is not a
merely 'a page of history but a whole volume. The compulsions of the
primordial need to maintain order in society. without which the
enjoyment of all rights, including the right to personal liberty, would lose
all their meaning are the true justifications for the laws of preventive
detention. The pressures of the day in regard to the imperatives of the
security of the State and of public- order might. it is true, require the
sacrifice of the personal-liberty of individuals. Laws that provide for
preventive detention posit that an individual's conduct prejudicial to the
maintenance of public-order or to the security of State provides grounds
for a satisfaction for a reasonable prognostication of a possible future
manifestations of similar propensities on the part of the offender. This
jurisdiction has been called a jurisdiction of suspicion; but the
compulsions of the very preservation of the values of freedom, of
democratic society and of social order might compel a curtailment of
individual liberty. "To lose our country by a scrupulous adherence to the
written law" said Thomas Jeferrson "would be to lose the law itself, with
life, liberty and all those who are enjoying with us; thus absurdly
sacrificing the end to the needs." This is, no doubt, the theoretical
justification for the law enabling preventive detention.
14. But the actual manner of administration of the law of preventive
detention is of utmost importance. The law has to be justified by the
genius of its administration so as to strike the right balance between
individual-liberty on the one hand and the needs of an orderly society on
the other. But the realities of executive excesses in the actual enforcement
of the law have put the courts on the alert, ever-ready to intervene and
confine the power within strict limits of the law both substantive and
procedural. The paradigms and value judgments of the maintenance of a
right balance are not static but vary according as the "pressures of the
day" and according as the intensity of the imperatives that justify both the
need for and the extent of the curtailment to be individual liberty.
Adjustments and readjustments are constantly to be made and reviewed.
No law is an end in itself. The "inn that shelters for the night is not
journey's end and the law, like the traveller, must be ready for the
morrow."
15. As to the approach to such laws which deprive personal liberty
without trial, the libertarian judicial faith has made its choice between the
pragmatic view and the idealistic or doctrinaire view. The approach to the
curtailment of personal liberty which is an axiom of democratic faith and
of all civilized like is an idealistic one for, loss or personal liberty
deprives a man of all that is worth living for and builds up deep
resentments. Liberty belongs what correspond to man's inmost self. Of
this idealistic view in the judicial traditions of the free- world, Justice
Dougla said:
"Faith in America is faith in her free institutions or it is nothing.
The Constitution we adopted launched a daring and bold
experiment. Under that compact we agreed to tolerate even ideas
we despise. We also agreed never to prosecute people merely for
their ideas or beliefs ......."
16. Judge Stanley H. Fuld of the New York Court of Appeals said:
"It is a delusion to think that the nation's security is advanced by
the sacrifice of the individual's basic- liberty. The fears and
doubts of the moment may loom large, but we lose more than we
gain if we counter with a resort to alian procedures or with a
denial of essential constitutional guarantees."
It was a part of the American judicial faith that the Constitution
and Nation are one and that it was not possible to believe that national
security did require what the Constitution appeared to condemn.
17. Under our Constitution also the mandate is clear and the envoy is
left under no dilemma. The constitutional philosophy of personal liberty
is an idealistic view, the curtailment of liberty for reasons of State's
security, public-order, disruption of national economic discipline etc.
being envisaged as a necessary evil to be administered under strict
Constitutional restrictions.
18. In Ichudevi v. Union of lndia AIR 1980 SC 1983, Bhagwati J.
spoke of this Judicial commitment:
"The Court has always regarded personal liberty as the most
precious possession of mankind and refused to tolerate illegal
detention, regardless of the social cost involved in the release of
a possible renegade.
This is an area where the court has been most strict and
scrupulous in ensuring observance with the requirements of the
law, and even where a requirement of the law is breached in the
slightest measure, the court has not hesitated to strike down the
order of detention ...." (emphasis supplied)
19. In Vijay Narain Singh v. State of Bihar, AIR 1984 SC 1334
Justice Chinnappa Reddy J. in his concurring majority view said:
"....I do not agree with the view that those who are responsible
for the national security or for the maintenance of public order
must be the sole judges of what the national security or public
order requires. It is too perilous a pro- position. Our Constitution
does not give a carte blanche to any organ of the State to be the
sole arbiter in such matters .... There are two sentinels, one at
either end. The legislature is required to make the law
circumscribing the limits within which persons may be
preventively detained and providing for the safeguards
prescribed by the Constitution and the courts are required to
examine, when demanded, whether there has been any excessive
detention, that is, whether the limits set by the Constitution and
the legislature have been transgressed . . ."
20. In Hem Lall Bhandari v. Sikkim, AIR 1987 SC 762 at 766, it
"It is not permissible in matters relating to the personal liberty
and freedom of a citizen to take either a liberal or a generous
view of the lapses on the part of the officers ........"
62. The preventive detention custody of the petitioner
being based upon procedural pitfalls is, thus, held to be illegal and
liable to be quashed.
63. Accordingly, preventive detention order No.
DMS/PSA/18/2024 dated 16th of July, 2024 passed by the
respondent No.2-District Magistrate, Srinagar read with
confirmation/ approval/ extension orders with respect to the
preventive detention of the petitioner are hereby quashed.
64. The petitioner is directed to be restored, without loss of
any time, to his personal liberty by his immediate release from the
concerned Jail and to that effect the Superintendent of the
concerned Jail detaining the petitioner to act in compliance of the
directions hereby being issued with respect to the release of the
petitioner from preventive detention custody.
65. Disposed of.
66. Record be returned.
(Rahul Bharti)
Judge
SRINAGAR
May 5th, 2025
"TAHIR"
i. Whether the Judgment is approved for reporting? Yes
