HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No. 100/2024 CM No. 4049/2024 CM No. 4050/2024 Iftar Hussain Th. Mukhtar Ahmed …..Appellant(s)/Petitioner(s) Through: Mr. Lawanya Sharma, Advocate vs UT of J&K and ors. .…. Respondent(s) Through: Mr. Pawan Dev Singh, Dy. AG Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER (ORAL) 02.01.2025 1. The petitioner in the instant petition filed under Article 226 of the Constitution seeks quashing of the detention Order No. 13/DMP/PSA of 2024 (For short ‘the impugned order’) dated 17.05.2024 passed by respondent 3 herein (For short ‘the Detaining Authority) under and in terms of the provisions of the J&K Public Safety Act, 1978 (For short ‘the Act of 1978’). 2. The impugned order has been challenged by the petitioner on multiple grounds urged in the petition. 3. Counter affidavit to the petition has been filed by the respondents wherein the petition is being opposed and resisted on the premise that the impugned order came to be passed against the petitioner in order to deter him from acting/indulging in prejudicial activities and that the impugned order does not suffer from any malice or legal infirmity and that while detaining the petitioner, all provisions of the Act of 1978 as also Serial No. 2 2 HCP No. 100/2024 safeguards enshrined in Article 22 (5) of the Constitution came to be fulfilled and adhered to. Heard learned counsels for the parties and perused the detention record produced by the counsel for the respondents. 4. Notwithstanding multiple grounds of challenge urged by the petitioner in the instant petition, the counsel for the petitioner confined the challenge only to the extent that the Detaining Authority while detaining the petitioner showed complete non application of mind, in that, the petitioner in the grounds of detention was shown to be involved in multiple FIRs’ including FIR No. 38/1998 and FIR No. 88/2006, in which FIRs’, the petitioner stands acquitted by the competent court of law and that the Detaining Authority has shown complete non awareness about the said fact and that beside the said FIR’s, the petitioner has also shown to have been booked under Section 107/110 of the Code of Criminal Procedure on 12.01.2023, 04.11.2023, 27.01.2024 and 12.03.2024, when the fact remains that the petitioner was never ever bound down there under the said provisions by the competent authority. Learned counsel would further submit that the Detaining Authority post detention did not furnish relevant material including the dossier to the petitioner relied upon by the Detaining Authority for detention of the petitioner rendering him incapable of making a representation against the detention which failure on the part of the Detaining Authority vitiates the impugned order. 5. On the contrary, the counsel for the respondents while opposing the submissions of the counsel for the petitioner would reiterate the 3 HCP No. 100/2024 contentions raised in the counter affidavit justifying the passing of the detention order under challenge in the petition against the petitioner. 6. In so far as the aforesaid first plea of the counsel for the petitioner qua his acquittal in the aforesaid FIRs’ is concerned, perusal of the record available on the file would reveal that the petitioner stands acquitted by the court of Sessions Judge, Poonch in terms of decision dated 31.03.2000 of the charge levelled against him in FIR No. 38/1998, whereas in FIR No. 88/2006 as well, the same stands disposed of/compounded on 06.12.2014 by the court of law. Further perusal of the record available on the file tends to show that even the FIR No. 026/2020 referred in the grounds of detention stands settled by the court of Munsiff, Mendhar on 18.11.2023 having arisen out of alleged violation by the petitioner of Covid restrictions. 7. The aforesaid position obtaining in the matter is found to have not been taken cognizance of either by the Sponsoring Agency being SSP, Poonch in the dossier or else by the Detaining Authority-respondent 3 herein while ordering the detention of the petitioner under preventive law. The said non awareness on the part of the respondents including the Detaining Authority manifestly signifies complete non application of mind on the part of the Detaining Authority rendering the impugned order illegal and unsustainable. 8. Besides the aforesaid facts emerging from the record, it is also evident from the detention record produced by the counsel for the respondents that the Detaining Authority has not taken into account the material furnished to it by the Sponsoring Agency qua the proceedings initiated against the petitioner under Section 107/117 of the Code of Criminal 4 HCP No. 100/2024 Procedure, in that, the detention record reveals that SHO, Police Station, Gursai had sought action against the petitioner from Executive Magistrate First Class, Harni under Section 107/110 Cr.P.C. and that no proceedings thereof seem to have been initiated against the petitioner by the said Executive Magistrate. This fact as well reflects complete non application of mind by the Detaining Authority while relying upon the said proceedings alleged to have been initiated against the petitioner under Section 107/110 Cr.P.C, rendering the impugned order legally unsustainable. 9. Having regard to the aforesaid position obtaining in the matter, it cannot, but be said that the preventive detention has been ordered against the petitioner by respondent 3 in terms of the impugned order in breach and violation of the statutory provisions of the Act of 1978 inasmuch as, constitutional guarantees as also the law laid down by the Apex Court in this regard. A reference to the judgment of the Apex Court passed in case titled as ‘Rahmatullah vs. State of Bihar & Ors.’ reported in 1979 (4) SCC 559 and the judgment passed by this Court in case titled as ‘Mohd. Maqbool Itoo vs. State & Ors.’ reported in 2010 (3) JKJ 700 would be relevant herein. 10. For what has been observed, considered and analyzed hereinabove, the instant petition deserves to be allowed. 11. Accordingly, the petition is allowed and the impugned order bearing No. 13/DMP/PSA of 2024 dated 17.05.2024 passed by respondent 3 herein is quashed with direction to the respondents including the concerned Jail Authority to release the petitioner from preventive detention forthwith unless required in any other case. 5 HCP No. 100/2024 12. Disposed of. 13. The detention record produced by the counsel for the respondents is returned back in the open Court. (JAVED IQBAL WANI) JUDGE Jammu 02.01.2025 Neha-II Whether the order is speaking: Yes/No ` Whether the order is reportable: Yes/No NEHA KUMARI 2025.01.07 16:05 I attest to the accuracy and integrity of this document