HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 18.03.2025 Pronounced on: 06.06.2025. Case:- CM No. 1062/2025 In HCP No. 100/2023 Danish Ahmad Shah, aged 25 years S/o Sonaullah Shah, R/o Ward No. 6 Bandipora A/P Ellahipora Aloosa, District Bandipora, Through his father …..Petitioner(s) Through: Mr. Shafqat Nazir, Advocate. Vs 1. Govt. of J&K through Principal Secretary to Govt. Home Department, Civil Secretariat, Srinagar/Jammu. 2. District Magistrate, Bandipora. 3. Superintendent Central Jail Kotebhulwal, Jammu. .….Respondent(s) Through: Mr. Jehangir Ahmad Dar, GA. Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE JUGMENT 01. Heard both sides. Perused the writ pleadings alongwith documents on record. 02. The petitioner – Danish Ahmad Shah, acting through his father, came to institute the present writ petition on 15.09.2023 before this Court thereby seeking a ‘Writ of Certiorari’ read with ‘Writ of Habeas Corpus’ on account of a cause of action relatable to his preventive detention custody effected under the Jammu & Kashmir Public Safety Act, 1978. 2 CM No. 1062/2025 In HCP No. 100/2023 03. Superintendent of Police (SP), Bandipora, vide his communication No. Lgl/PSA-22/2023/24102-08 dated 12.07.2023, had served a dossier to the respondent No. 2 – District Magistrate, Bandipora thereby soliciting the preventive detention of the petitioner with an aim to prevent the petitioner from indulging in alleged activities reckoned to be prejudicial to the security of the State. 04. In the aforesaid dossier, the petitioner came to be referred as a labourer by occupation but instrumental in propagating and instigating extremist ideology in North Kashmir especially in district Bandipora on account being an admirer of Lashkar-e-Toiba (in short, “LeT”) terrorist outfit. The petitioner is referred to be having a criminal bent of mind exhibited from the fact of his participation in unlawful/anti-national activities in district Bandipora. The petitioner was referred to be a terrorist associate of LeT outfit and, as such, constituting a potent threat to peace, security of State, tranquility and public order. 05. The petitioner’s implication in FIR No. 28/2022 registered by the Police Station, Bandipora for alleged commission of offences under sections 20/23/38 of the Unlawful Activities (Prevention) Act, 1967 came to be highlighted which involved an alleged incident of the petitioner being allegedly found carrying 3 CM No. 1062/2025 In HCP No. 100/2023 one chinese pistol alongwith magazine and six rounds of pistol, one hand grenade. 06. The petitioner is alleged to have provided logistic support in carrying recent terrorist attacks at Sub-Division Bandipora working on the direction of LeT handlers, namely, Samama alias Ali and Hilal Ahmad Malik. 07. The petitioner was referred to have been booked under the Jammu & Kashmir Public Safety Act, 1978 on previous occasion in terms of an order No. 01/DMB/PSA of 2022-23 dated 06.04.2022 also passed by the respondent No. 2 – District Magistrate, Bandipora which had resulted in his detainment but on account of judgment dated 03.04.2023 in a writ petition WP(Crl) No. 225 of 2022, the said preventive detention of the petitioner had come to be quashed resulting in release of the petitioner from preventive detention. 08. Acting upon second time served said dossier, the respondent No. 2 – District Magistrate, Bandipora formulated grounds of detention so as to draw a subjective satisfaction that the petitioner was related in activities allegedly prejudicial to the security of the State warranting his detention and that led to the passing of detention order No. 09/DMB/PSA of 2023 dated 20.07.2023 closely following the heels of judgment dated 03.04.2023 of this Court in WP(Crl) No. 225 of 2022 whereunder 4 CM No. 1062/2025 In HCP No. 100/2023 the petitioner’s previous detention in terms of the detention order No. 01/DMB/PSA of 2022-23 dated 06.04.2022 had come to be quashed. 09. Upon issuance of the aforesaid detention order No. 09/DMB/PSA of 2023 dated 20.07.2023, the petitioner came to be taken into preventive detention custody on 24.07.2023 and confined to the Central Jail Jammu, Kot-Bhalwal to serve detention custody. 10. The petitioner, acting through his father – Sonaullah Shah, came to submit a written representation dated 23.08.2023 addressed to the Principal Secretary to Govt., Home Department thereby seeking revocation of preventive detention order No. 09/DMB/PSA of 2023 dated 20.07.2023. In his representation, the petitioner came to submit that he had indulged in no act of omission or commission in any manner whatsoever which warranted his preventive detention and that he was even ready to execute a bond for good behavior if the detention order is revoked. This representation was submitted and sent through registered post. 11. The preventive detention order of the petitioner came to be approved by the Government vide its order No. Home/PB- V/1676 of 2023 dated 26.07.2023. Upon receipt of Advisory Board’s opinion holding the petitioner’s preventive detention to be 5 CM No. 1062/2025 In HCP No. 100/2023 based upon sufficient cause, the preventive detention of the petitioner came to be confirmed by virtue of Govt. Order No. Home/PB-V/1917 of 2023 dated 25.08.2023. 12. The petitioner, thus, came to be subjected to suffer full two years’ maximum detention period which is going to lapse in the coming month of July 2025 but the petitioner has invested his trust as a Citizen of India in the constitutional mechanism and institution which being this Court to adjudicate upon the legality and validity of his preventive detention and earn restoration of his personal liberty by a deliberation rather than by a default mode. 13. The petitioner has challenged his preventive detention on the basis of the grounds as set-forth in para 6 (I) to (XII). In the grounds of challenge to his preventive detention, the petitioner has come to refer to the fact that in so far as his involvement in FIR No. 28 of 2022 registered by the Police Station, Bandipora is concerned, he is on bail in the said case granted by the competent criminal court of law which bail was never ever assailed by the Prosecution and that only in order to frustrate the bail so earned by him that preventive detention jurisdiction mode was resorted to by the District Police, Bandipora reciprocated by the respondent No. 2 – District Magistrate, Bandipora. 6 CM No. 1062/2025 In HCP No. 100/2023 14. The petitioner has, in a very assertive tone, impugned his preventive detention on the ground that his representation dated 23.08.2023 was left unconsidered by the Home Department, Govt. of UT of Jammu & Kashmir without any communication as to its fate being conveyed to him. 15. In the counter affidavit filed to the writ petition while defending the course of action leading to the preventive detention of the petitioner, the respondent No. 2 – District Magistrate, Bandipora has come to submit that he did not receive any written representation whatsoever if made by the petitioner for seeking revocation of his preventive detention. 16. It is in the light of the aforesaid facts and circumstances that this Court is to consider the legality and validity of the preventive detention of the petitioner and its consequent fate whether to earn restoration of personal liberty to the petitioner or to suffer continuing detention to its maximum period expiring in July 2025. 17. Even if the preventive detention of the petitioner in terms of its origin is held to be valid still the later procedural non- compliance on the part of the respondents has a vitiating effect rendering preventive detention of the petitioner unsustainable and that vitiating factor is that the written representation dated 23.08.2023 submitted by the petitioner to the respondent No. 1 – 7 CM No. 1062/2025 In HCP No. 100/2023 Principal Secretary to Govt., Home Department has remained un- attended and un-responded. This fact is gatherable from the very counter affidavit filed in the writ petition. 18. The counter affidavit has been filed by the respondent No. 2 – District Magistrate, Bandipora as if he is and is not meant, to be speaking on behalf of the respondent No. 1 i.e., UT of Jammu & Kashmir through its Principal Secretary to Govt., Home Department. 19. The respondent No. 2 – District Magistrate, Bandipora has very deftly come forward with a response that he did not receive any written representation from the petitioner’s end with respect to revocation of preventive detention imposed upon the petitioner. To this extent, the respondent No. 2 – District Magistrate, Bandipora is correct. 20. The truth of matter, however, is that the representation in written form was addressed and submitted to the respondent No. 1 and sent through registered post which fact ought to have been confirmed by the respondent No. 2 - District Magistrate, Bandipora from the respondent No. 1’s end so as to come forth with a response in the counter affidavit to the writ petition as to whether any such representation dated 23.08.2023 so submitted by the petitioner addressed and sent to the respondent No. 1 8 CM No. 1062/2025 In HCP No. 100/2023 through registered post was ever received by the respondent No. 1 or not. 21. The respondent No. 2 – District Magistrate, Bandipora came forward with the counter affidavit as if it was not part of his legal responsibility to apprise this Court in the counter affidavit as to the fate of the petitioner’s said written representation at the end of the respondent No. 1. 22. Therefore, this Court is constrained to act upon the fact that despite written representation dated 23.08.2023 having been duly submitted to the respondent No. 1, the same remained un-attended, un-considered and un-responded to the petitioner all along thereby wasting his constitutional right of representation against his preventive detention thereby seriously vitiating the continuation of his preventive detention custody. Right to make a representation is a constitutional right vested in a detenue who is subjected to suffer preventive detention custody. This right to make representation is too sacrosanct to be dealt with casually and evasively except at the risk of rendering the preventive detention vitiated with illegality. 23. Accordingly, bearing in mind the aforesaid facts and circumstances, the preventive detention of the petitioner is held to be illegal. Preventive detention order No. 09/DMB/PSA of 2023 dated 20.07.2023 of the respondent No. 2 – District Magistrate, 9 CM No. 1062/2025 In HCP No. 100/2023 Bandipora read with approval/confirmation/extension orders passed by the respondents No. 1 and 2 are held to be illegal, and, accordingly, quashed. 24. The preventive detention custody of the petitioner is, therefore, set-aside with a corresponding direction to the concerned Superintendent of the concerned Jail having the custody of the petitioner pursuant to the preventive detention slapped upon the petitioner to immediately release the petitioner from said confinement and custody of the Jail. (RAHUL BHARTI) JUDGE SRINAGAR 06.06.2025 Bunty Whether the judgment is speaking: Yes Whether the judgment is reportable: No Bunty Kumar 2025.06.19 15:32 I attest to the accuracy and integrity of this document Jammu