WP (Crl) No. 289/2023 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … Wp (Crl) No. 289/2023 Reserved on: 10.04.2025 Pronounced on: 25.04.2025 Bashir Ahmad Bhat, Aged 59 years S/o Late Habib Ullah Bhat, R/o Jagir Parigam, Pulwama through his son Umar Khalid Bhat, ……...Petitioner(s) Through: Mr. Mohammad Ayoub Bhat, Advocate Versus 1. UT of Jammu and Kashmir through Commissioner/ Secretary to Government, Home Department J&K, Government, Civil Secretariat, Srinagar/Jammu. 2. District Magistrate, Pulwama. 3. Superintendent Central Jail Kothbalwal, Jammu. ……Respondent(s) Through: Mr Furkaan Sofi, GA CORAM: HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1. Challenge is made in the instant petition to the detention order No. 25/DMP/PSA/23 dated 12.05.2023, for short “impugned order”, issued by District Magistrate, Pulwama-respondent No. 2 herein, for short as detaining authority, whereby Bashir Ahmad Bhat Son of Late Habib ullah Bhat resident of Jagir Parigam, District Pulwama, hereinafter referred to as “detenue” has been placed under preventive detention, on the grounds taken in the memo of petition. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document WP (Crl) No. 289/2023 BRIEF FACTS 2. The detenue is believed to have been in contact with Al Jehad Terrorist Commander Mohammad Maqbool Sheikh R/o Lerve Kakapora who motivated him to join the terrorist ranks and accordingly the detenue became a terrorist. Subsequently, the detenue was arrested in the year 1995 and remained incarcerated till 2005 for a period of ten years and upon his release he joined Hurriyat Conference. The detenue was again arrested in the year 2019 and later on released again. The detenue is further stated to be a member of banned terrorist outfits of LeT and TRF having invariably been promoting subversive activities, posing threat to the security of the state 3. Precisely, the case of the petitioner is that the detenue has been arrested by the respondents on vague, irrelevant and non-existing grounds. The detenue is stated to be an innocent peace-loving citizen who has been falsely detained under preventive detention without any allegations against him warranting exercise of such power. The petitioner inter alia challenges the impugned order on the grounds, that detenue has not been furnished all the material which has been relied upon by the detaining authority in issuing the impugned order; the subjective satisfaction has not been derived by the detaining authority itself which is a sine qua non for passing the order of detention; the respondent No. 2 in derogation of law, has not applied his mind as to whether the detention order was required to be passed against the detenue; no mention is made in the detention order or in the grounds of detention that already a detention order issued against the detenue has been quashed by this Court thereby reflecting non-application of mind by the detaining authorities to the facts of the instant Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document WP (Crl) No. 289/2023 case; the detenue has not been connected with any specific activity that would warrant issuance of preventive detention against the detenue. 4. 4. Per contra, it is stated by the respondents in their counter affidavit that the detenue was involved in the subversive activities in the year 1995, was a terrorist having served incarceration for over a period of ten years and had thereafter turned to be an an active member of the Hurriyat Coference (G) and his activities had posed a serious threat to the security of the State, as such, the Police recommended his preventive detention and in this behalf submitted dossier supported by relevant material to the District Magistrate, Pulwama, whereafter the record/material was examined and after finding the preventive detention of the detenue necessary, the order of detention was passed with the aim and object to prevent the detenue from indulging in the subversive activities. 5. Heard learned counsel for the parties, considered the submissions made and perused the detention record. 6. The perusal of the material placed on record would reveal that the respondents have not controverted at all the important plea raised by the detenue that earlier a detention order had been issued against the detenue on the same grounds as in the impugned order which, on consideration was quashed by this Court in terms of judgment dated 20.03.2019. 7. The perusal of the judgment dated 20.03.2019 passed by this Court would emphatically reveal that the detenue had indeed been put under detention in the year 2018 on the similar grounds as have been pressed into service in the instant impugned order which has been quashed subsequently, upon consideration by this court. This would unambiguously suggest that the Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document WP (Crl) No. 289/2023 detaining authority has not applied its own mind while passing the detention order which is sufficient to render the detention order unsustainable in law. 8. The Supreme Court in case titled Joyi Kitty Joseph v. Union of India & Ors., reported as {2025} SCR 419 has held that the detaining authority should take into consideration whether a criminal prosecution is launched in respect of the activities similar to the ones pressed into service for ordering detention and to examine whether such prosecution was sufficient to curb the evil of further indulgence for similar activities. In the instant case, the detaining authority has not even taken into consideration the judgment of this court earned by the detenue in respect of identical activities which resulted in the quashment of such detention order. Paragraphs 21 and 22 of the Apex Court judgment supra being relevant are taken note of:- “21. The criminal prosecution launched and the preventive detention ordered are on the very same allegations of organised smuggling activities, through a network set up, revealed on successive raids carried on at various locations, on specific information received, leading to recovery of huge cache of contraband. When bail was granted by the jurisdictional Court, that too on conditions, the detaining authority ought to have examined whether they were sufficient to curb the evil of further indulgence in identical activities; which is the very basis of the preventive detention ordered. The detention order being silent on that aspect, we interfere with the detention order only on the ground of the detaining authority having not looked into the conditions imposed by the Magistrate while granting bail for the very same offence; the allegations in which also have led to the preventive detention, assailed herein, to enter a satisfaction as to whether those conditions are sufficient or not to restrain the detenu from indulging in further like activities of smuggling. 22. We, hence, allow the appeal and set aside the order of detention. The detenu shall be released forthwith, if still in custody.” (Emphasis supplied) Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document WP (Crl) No. 289/2023 9. The respondents having not taken into consideration the quashment of earlier detention order which was based on the similar activities as taken recourse to in the instant detention order, have indeed violated with impunity the right of liberty of an individual. The Supreme Court has been consistently holding that the grounds of detention should always be proximate, pertinent and relevant as the subjective satisfaction of the detaining authority is not immune to judicial review though an exclusive domain of the detaining authority. The impugned order is quite cryptic based on exactly the same grounds on the basis whereof the earlier detention order had been issued which subsequently has been quashed by this Court. 10. The Supreme Court in case titled JahangirKhan Fazalkhan Pathan v. The Police Commissioner, Ahmedabad and another reported as 1989 3 SCC 590. The relevant portion of the judgment is reproduced for facility of reference herein: “….It is therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered.” 11. The respondents, are as such, not justified in any way to issue and maintain a detention order on the same set of facts on which a detention order has already been issued which later on could not withstand the judicial scrutiny. 12. Viewed thus, the petition is allowed and detention order No. 25/DMP/PSA/23 dated 12.05.2023, issued by District Magistrate, Pulwama- respondent No. 2 detaining the detenue Bashir Ahmad Bhat Son of Late Habib Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document WP (Crl) No. 289/2023 ullah Bhat Resident of Jagir Parigam, District Pulwama, is quashed and the respondents are directed to release the detenue forthwith. 13. Registry to return the detention record to the learned counsel for the respondents against receipt. 14. Disposed of. (MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 25.04.2025 “Mohammad Yasin Dar” Whether the Judgment is reportable: Yes/No. Whether the Judgment is speaking: Yes Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document