HCP 161/2024 p. 1 Serial No. 9 Regular Cause list HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP 161/2024 CM(1059/2025) Shabir Ahmad Pandit S/o Jalal ud Din Pandit R/o Karimabad , Tehsil & District Pulwama, Jammu and Kashmir Through his father namely Jalal ud Din Pandit S/o Ali Mohd Pandit R/o Karimabad Tehsil & District Pulwama, Jammu and Kashmir …Appellant(s)/Petitioner(s) Through: Mr. Tariq M. Shah, Advocate Vs. 1. Union Territory of J and K Through Commissioner Secretary to Government Home Department Civil Secretariat Srinagar/Jammu 2. District Magistrate/ Deputy Commissioner Pulwama. 3. Senior Superintendent of Police District Pulwama. ...Respondent(s) Through: Mr. Furkan Yaqoub, GA CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE. JUDGMENT 28.08.2025 ORAL: 1. The instant petition has been preferred by father of the detenue thereby challenging detention order No. 20/DMP/PSA/24 dated 08.04.2024 (hereinafter referred to as “impugned order”) passed by District Magistrate Pulwama, whereby Mr. Shabir Ahmad Pandith (hereinafter referred to as the “detenue”) S/O Jalal Ud Din Pandith R/O Karimabad Pulwama, has been detained under Section 8 of the J&K Public Safety Act, 1978. Factual Matrix: 2. The detenue is stated to have been associated with the banned terrorist outfit LeT, working with it as an OGW, the detenue has been providing assistance and shelter to the terrorists of the said organization in Karimabad Parigam, Kakapora area of Pulwama. The said terrorist organization is believed HCP 161/2024 p. 2 to have been pursuing the agenda of seceding Kashmir from India and annexe it with Pakistan. The petitioner is also stated to have been involved in various terror acts, therefore, in order to prevent the detenue from acting in a manner prejudicial to the maintenance of the security of the state, the respondents ordered his preventive detention in terms of the impugned order, which is challenged by the petitioner in the instant petition, inter alia on the grounds that the impugned order suffers from the non-application of mind, having been issued solely on the basis of the material provided by the police agency to respondent No.2; the impugned order is vague, cryptic and has been passed without following the principles of natural justice; the impugned order is without any basis as the detenue does not have any criminal record or activity alleged against his person in the shape of any police FIR ; the detenue has not been provided with the copy of the detention order, dossier, grounds of the detention relied upon by the detaining authority while issuing the impugned order; the detenue has not been informed of his right to make representation against his detention, thereby violating the Article 22(5) of the Constitution of India; the detenue has been provided with the material in the language which he did not understand; the detaining authority has not recorded its satisfaction as regards the insufficiency of the ordinary criminal law to deter the detenue from indulging in criminal activities; there is no proximate link between the grounds of detention and the alleged activities of the detenue ; the detaining authority has not derived any subjective satisfaction that the preventive detention of the detenue is necessary. 3. Per contra, it is stated that the detenue was taken in preventive custody as per requirement of law and was served with the necessary record. He was also informed about his right to submit representation against his detention. The representation was rejected by the competent authority on 23.04.2024 and the HCP 161/2024 p. 3 copy of the rejection was forwarded to Jail Authorities of handing over the same to the detenue. The order has been passed by competent authority with complete independent application of mind and circumstances of the case and after perusing the dossier furnished by concerned police, supported by other record/material. Since the activities of the detenue are highly prejudicial to the Security of State, therefore to prevent him from acting in such activities, the detenue has been detained strictly in accordance with the provisions of Public Safety Act. The warrant was executed and the detenue was taken into preventive custody. The contents of the warrant and the grounds of detention were read over and explained to the detenue in the language which he could understand. 4. Heard learned counsel for the parties and perused the material on record. 5. Learned counsel for the petitioner has vehemently argued that the allegations leveled in the grounds of detention are vague and cryptic. Moreover, there is no proximity or live link of the detenue with the alleged activities as stated in the grounds of detention. It is specifically mentioned in the grounds of detention that the detenue was taken into preventive detention on the ground that his alleged actions could prove prejudicial to the Lok Sabha Elections in the year 2024. In the dossier prepared by Senior Superintendent of Police, District Pulwama, it is mentioned “The normal law which was invoked against the subject has not proved sufficient to deter him from indulging in the activities, as such,there are compelling reasons for detention of the subject under the provisions of the J&K Public Safety Act at this stage.” 6. As far as the detenue is concerned, no FIR has been lodged against him nor any action has been taken by the police station concerned, as such expression by Senior Superintendent of Police District Pulwama that the normal law, which was invoked against the detenue was not proved to be sufficient to deter him indulging in the activities clearly reflects non-application of mind of HCP 161/2024 p. 4 the officer. Moreover, there is no subjective satisfaction on part of the detaining authority in passing the detention order, without looking into the fact that not only the allegations alleged are vague, cryptic but also has no substance. 7. Learned counsel for the petitioner has further stated that there is neither any FIR nor any past activities on the basis of which the detenue could have been detained. The intelligence/field report which has been referred in the dossier by Senior Superintendent of Police, District Pulwama has not been furnished to the detenue, as a result of which he could not make an effective representation before the competent authority. 8. This Court in case titled “Tariq Ahmad Napa Vs. Union Territory of J&K & Anr.” bearing WP(Crl) No. 743/2022, has held as under: “On first blush, a plain reading of grounds of detention would suggest that detenue has indulged in various anti-national/anti- social activities and he is an active member of separatists‟ organizations or militant outfits, however, it is surprising to note that not even a single FIR has been registered against him for any activity alleged to have been committed by him in the past. Since allegations against the detenue are general in nature, therefore, I find legal force in the submission of learned senior counsel, appearing for the petitioner, that detenue was prevented from making an effective representation against his detention. The allegations against the detenue, being devoid of specific details, he was left with no option but to make general denial of the allegations that he is not involved in any such activity alleged to have been committed by him. The detaining authority has not furnished any detail on the basis of which it formulated the opinion that normal law of land did not prove sufficient to dissuade the detenue from indulging in activities prejudicial to the security of the State.” 9. I am supported in my view with the judgment passed in case titled “Amar Chand Butail Vs. Union of India and others” reported as AIR 1964 SC 1658 , para 13 being relevant is taken note of hereunder : “But on the merits also we feel no doubt in rejecting the said claim. The statement made by the Home Minister does not show that he seriously applied his mind to the contents of the documents and examined the question as to whether their HCP 161/2024 p. 5 disclosure would injure public interest. We are constrained to observe that this case illustrates how a claim for privilege can be and is sometimes made in a casual manner without realizing the solemnity and significance attached to the exercise of the power conferred on the head of the department to make that claim. As we will presently point out, one of the documents which was produced before us under our directions would tend to show that the sole reasons for claiming privilege in respect of that document was the fear rightly entertained that the disclosure of the said document would entirely defeat the whole of defence made by respondents 1 and 2. Since it was necessary for us to consider whether the claim had been rightly upheld by the Courts below, we direct respondents 1 and 2 to produce the said documents before us for out inspection. Accordingly such of the documents as were available have been produced before us and it is to one of them that we propose to refer. Having seen all the documents produced before us, we are satisfied that the claim for privilege made by respondent No. 2 was not justified at all and may even be characterized as not bona fide.” 10. The learned counsel for the petitioner has laid emphasis on another judgment passed by the Apex Court in case titled “Smt. Shalini Soni Etc Vs Union of India & Ors.” reported as 1981 AIR 431, the relevant portion of which is reproduced hereunder: “The Article has two facets: (1) communication of the grounds on which the order of detention has been made; (2) opportunity of making a representation against the order of detention. Communication of the grounds pre-supposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism (if one may be permitted to use the word to describe a mechanical reaction without a conscious application of the mind). It is an unwritten rule of the law, constitutional and administrative, that whenever a decision making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit obligation to apply his mind to the pertinent and proximate matters only eschewing the irrelevant and the remote. Where there is further an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the grounds communicated, that is, the grounds so made known, should be HCP 161/2024 p. 6 seen to pertain to pertinent and proximate matters and should comprise all the constituent facts and materials that went into make up the mind of statutory functionary and not merely the inferential conclusions. Now, the decision to detain a person depends on the subjective satisfaction of the detaining authority. The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second fact of Art. 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that “grounds” in Art. 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The „grounds‟ must be self-sufficient and self-explanatory. In our view copies of documents to which reference is made in the „grounds‟ must be supplied to the detenu as part of the „grounds‟.” 11. Admittedly, respondents herein have failed to substantiate the grounds on which the detention order has been passed against the detenue. The District Magistrate has only acted upon the dossier having been submitted to him by SSP without deriving any subjective satisfaction and applying his mind. 12. In view of the above and having regard to what has been discussed, the impugned detention order does not sustain in the eyes of law. Hence, the instant petition is allowed and the impugned detention order No. 20/DMP/PSA/24 dated 08.04.2024 is quashed. Respondents are directed to release the detenue namely Mr. Shabir Ahmad Pandith S/O Jalal Ud Din Pandith R/O Karimabad Pulwama from preventive custody forthwith. HCP 161/2024 p. 7 13. Detention record be returned to the learned counsel for respondents against receipt. (MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR: 28.08.2025 “Adil Ismail”  Whether the Judgment is Reportable? Yes/No.  Whether the Judgment is Speaking? Yes/No