Mohd. Kabir vs U.T Of Jammu And Kashmir
2025 Latest Caselaw 87 J&K

Jammu & Kashmir High Court

Mohd. Kabir vs U.T Of Jammu And Kashmir on 8 May, 2025

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                    Sr.No. 08
                                                                           2025:JKLHC-JMU:1151



      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                  HCP No. 9/2025
                                  CM No. 2453/2025
                                  CM No. 160/2025

Mohd. Kabir, age 49 years, S/o Feroz Din,
R/o Village Nerojal, Tehsil Thanna Mandi,
District Rajouri (Detenue)
Through his wife Gulnaz Perveen, age 41
years R/o Village Nerojal, Tehsil Thanna
Mandi, District Rajouri                                         ....Petitioner(s)

                      Through: Mr. C.S. Azad, Advocate
                 Vs

1. U.T of Jammu and Kashmir
   Through Additional Chief Secretary/
   Principal Secretary to Government,
   Home Department, Civil Secretariat,
   Jammu-180001
2. District Magistrate, Rajouri
3. Sr. Superintendent of Police, Rajouri
4. Station House Officer, Police Station
   Thannamandi, District Rajouri
5. Jail Superintendent, Kote Bhalwal,
   Jammu Jail                                                  ..... Respondent(s)

                      Through: Mr. Rajesh Kumar Thappa, AAG

Coram:     HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                    ORDER

08.05.2025

1. In the instant petition filed under Article 226 of the Constitution of

India, the petitioner herein has challenged the detention Order No.

DMR/INDEXC/05 of 2024 dated 22.10.2024 read with Order No.

DMR/JC/2024-25/2236-40 dated 07.11.2024 (for short 'the impugned

order') passed by the respondent No. 2/District Magistrate, Rajouri (for short

'the detaining authority') in terms of provisions of the Jammu & Kashmir

Public Safety Act, 1978 (for short 'the Act of 1978').

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2. The petitioner has challenged the impugned order on multiple

grounds urged in the petition.

3. Reply has been filed to the petition by the respondent 2/detaining

authority, wherein the petition has been opposed on the premise that on the

basis of the dossier furnished, revealing the activities of the petitioner highly

prejudicial to the maintenance of public order, and the involvement of the

petitioner in as many as 12 FIRs, posing a serious threat to the public order,

preventive detention of the petitioner became imperative and that though the

petitioner was previously detained under preventive detention under the Act

of 1978, yet the said detention did not reform the petitioner and he continued

with his criminal activities thereof.

Heard learned counsel for the parties and perused the record.

4. According to Mr. C.S. Azad, appearing counsel for the petitioner,

though the petitioner was earlier detained under the preventive detention by

the respondents owing to his alleged involvement in as many as 10 FIRs, the

detaining authority while passing the present impugned order has yet again

referred to and relied upon the said earlier FIRs, despite having been

scrutinized by this Court while quashing the said earlier detention order on

29.09.2023 in HCP No. 20/2023 filed by the petitioner.

According to Mr. Azad, although, post quashing of the earlier

detention, the detaining authority while detaining the petitioner in terms of

the impugned order has referred to and relied upon two more FIRs being FIR

No. 91/2024 registered with Police Station, Thanamandi and FIR No.

281/2023 registered with Police Station, Akhnoor, yet the said FIRs do not

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per se constitute any activity, which could be said to be prejudicial to public

order, warranting the detention of the petitioner.

Mr. Azad would further contend that FIR No. 91/2024 (Supra),

though, came to be registered as per the grounds of detention on 21.06.2024

against the petitioner along with one Tariq Mehmood, being his son, the said

son of the petitioner on 21.06.2024 was already under preventive detention,

detained under and in terms of the detention order dated 13.05.2024, thus,

suggesting complete non-application of mind by both the sponsoring agency

as well as the detaining authority in the matter.

5. On the contrary, Mr. Rajesh Thappa, learned AAG appearing

counsel for the respondents, while opposing the submissions of Mr. Azad

would insist that the petitioner is a gangster and a notorious criminal,

involved in multiple criminal cases, which necessitated his detention under

the preventive law, in that, the ordinary law was found to be insufficient to

deter the petitioner from indulging in activities prejudicial to the public

order.

6. Insofar as, the aforesaid first plea of the counsel of the petitioner is

concerned, record available on the file bears testimony to the fact that the

petitioner have had been previously detained under preventive detention by

the respondents in terms of the detention order dated 15.06.2023, having

admittedly been based upon aforesaid 10 FIRs referred therein in the said

order of detention and upon being examined by this Court in HCP No.

20/2023 (Supra), filed by the petitioner while calling in question the said

detention order, stands taken cognizance of and the said FIR's including

FIRs Nos. 91/2024 and 281/2023, seemingly, have formed basis for

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detaining the petitioner in terms of the present impugned order. It also gets

revealed from the record available on the file that the activities attributed to

the petitioner covered in the said FIR No. 91/2024 and 281/2023 (Supra),

seemingly, do not constitute an activity prejudicial to public order, so much

so, it also gets revealed from the record that on the date of registration of FIR

No. 91/2024 (Supra) being 21.06.2024, the son of the petitioner referred in

the said FIR, namely, Tariq Mehmood have had been under preventive

detention and could not have been found involved in the commission of

offences covered in the said FIR by any stretch of imagination. A reference

in this regard to the judgment of this Court passed in case titled as "Wali

Mohd Bhat vs. Distt. Magistrate, Baramulla" reported in 1986 Cri LJ 655,

would be relevant.

The aforesaid facts and circumstances thus, manifestly, tend to

show that the respondents have taken recourse to the preventive law for

detaining the petitioner on account of his involvement in alleged criminal

activities as a short-cut method by styling the said activities of the petitioner

to be the one prejudicial to the public order. It is also manifest from the

record that the detaining authority have had been not sure about the activities

attributed to the petitioner as to whether the same constitute activities

prejudicial to the public order or to public peace and tranquility, in that, the

detaining authority, in the grounds of detention, has referred at various places

such activities to be anti-social at some places, against peace and tranquility

of the society and at various places to the public order.

A reference in regard to the above judgment of this Court passed in

the case titled "Faizan Rafiq Hakeem vs. State of J&K and ors." reported in

2025:JKLHC-JMU:1151

2011(3) JKJ 238, would be relevant herein wherein at para-16 following has

been laid down:-

"16. Hon'ble Supreme Court in case titled G. M. Shah v. State of J&K reported in (1980) 1 Supreme Court Cases 132 has ruled that detaining authority cannot while ordering for detention of a person simultaneously state that his activities are highly prejudicial to the security of a state and maintenance of public order."

Besides, while detaining the petitioner under the present impugned

order, the reliance placed upon the FIR's earlier relied upon by the detaining

authority while detaining the petitioner earlier as well, is not countenanced

by the law laid down by the Apex Court in case titled "C.B. Kahar vs. N.L.

Kalna" reported in AIR 1989 SC 1234, wherein at para-12, following has

been laid down:-

"12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts for passing a subsequent order. A fortiori when a detention order is quashed by the court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration either as a whole or in part even along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the court strikes down an earlier order by issuing rule it nullifies the entire order."

7. Viewed thus, for what has been observed, considered and analyzed

herein above, the impugned order is liable to be quashed.

8. Accordingly, the instant petition is allowed and the impugned

detention Order No. DMR/INDEXC/05 of 2024 dated 22.10.2024 read with

Order No. DMR/JC/2024-25/2236-40 dated 07.11.2024 is quashed with a

direction to the respondents, including the concerned jail authority, to release

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the petitioner from preventive detention forthwith, unless, he is not required

in any other case.

9. Disposed of.

                               (                             (Javed Iqbal Wani)
                                                                       Judge
Jammu
08.05.2025
Pawan Angotra


                          Whether the order is speaking? : Yes/No
                          Whether the order is reportable? : Yes/No