HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No. 146/2024 Ghulam Nabi Chopan Th. Gulzar Ahmed …..Appellant(s)/Petitioner(s) Through: Mr. Sanchit Verma, Advocate. vs UT of J&K and others .…. Respondent(s) Through: Mr. Eishan Dadichi, GA. Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 17.07.2025 ORAL 1. The petitioner, in the instant petition, filed under Article 226 of the Constitution, has thrown challenge to order of detention bearing No. 5th/DM/K/PSA of 2024 dated 07.11.2024 (for short ‘the Impugned Order’) passed by the respondent 2 (for short ‘the Detaining Authority’) under and in terms of provisions of the J&K Public Safety Act, 1978 (for short ‘the Act of 1978’). 2. The petitioner has challenged the impugned order on multiple grounds urged in the petition. 3. Counter affidavit to the petition has been filed by respondents 2 and 3, wherein the petition is being opposed on the premise that on account of the involvement of the petitioner in FIR No. 01/2020 under Sections 13/18/19/20/23/38/39 of ULA(P) Act registered with Police Station, Dachhan, as also in view of the adverse reports recorded in DD No. 06 dated 20.06.2024, DD No. 09 dated 23.06.2024, DD No. Serial No. 2 2 HCP No. 146/2024 06 dated 25.06.2024, DD No. 14 dated 29.10.2024 and DD No. 14 dated 31.10.2024 entered in the daily register of Police Station, Dachhan qua the petitioner, he, the petitioner came to be detained by the Detaining Authority in terms of the order under challenge, as the Detaining Authority, on the basis of material and reports submitted before it, came to be subjectively satisfied that there is serious apprehension that the petitioner in connivance with the foreign terrorists active in the area may indulge in killings and attacks on the security forces, as also may cause damage to the construction of Pakal- Dul HEP Dong Doru Project, while observing that since the substantive law failed to deter the petitioner from indulging in anti- national activities after the petitioner came to be enlarged on bail in FIR No. 01/2020, the detention of the petitioner became imperative under the Act of 1978, which detention order came to be passed after due and proper application of mind. Heard learned counsel for the parties and perused the detention record produced by the counsel for the respondents. 4. According to the counsel for the petitioner, the Detaining Authority, in a mechanical manner, ordered the preventive detention of the petitioner in terms of the impugned order without independent application of mind, inasmuch as, overlooking the fact that owing to the alleged activities of the petitioner post enlargement on bail, the petitioner could have been proceeded against either under criminal law or else the bail obtained by him in the FIR (Supra) could have been 3 HCP No. 146/2024 cancelled in view of the conditions incorporated itself in the bail order in this regard. Learned counsel for the petitioner would further submit that the Detaining Authority also failed to advert to the contents of DDR’s referred to by the Sponsoring Agency in the dossier, the contents of which DDR’s, per se, did not allege any such activity against the petitioner warranting his detention under the preventive law, in that, at the most in view of the said DDR’s, the petitioner could have been proceeded against under ordinary criminal law, however, the Detaining Authority instead chose an alternate provisions of the Act of 1978 for detaining the petitioner even without drawing subjective satisfaction in this regard. Lastly, the counsel for the petitioner would contend that the petitioner post detention submitted a representation against the impugned order before the respondent 2, seeking revocation of the same, which representation was not considered without any lawful justification. 5. On the contrary, the counsel for the respondents, while opposing the contentions of the counsel for the petitioner would contend that the order of detention came to be passed legally and validly against the petitioner, owing to his activities being prejudicial to the security of the State and that in the process of detaining the petitioner under the Act of 1978 by the Detaining Authority, all the legal, statutory and constitutional requirements and guarantees came to be fulfilled and complied with. 4 HCP No. 146/2024 Learned counsel for the respondents, thus, would insist for dismissal of the petition. 6. In so far as the aforesaid first and second contention of the counsel for the petitioner are concerned, it is an admitted fact emerging from the record that the petitioner stands bailed out in FIR No. 01/2020 on 11.12.2021 and perusal of which bail produced by the counsel for the petitioner during the course of hearing, passed by the court of learned 3rd Additional Sessions Judge, Jammu, manifestly reveals that the petitioner herein along with other accused persons stands granted the concession of bail, subject to various conditions including the condition that the petitioner shall not commit any offence during the period of interim bail, while providing liberty thereof to the Investigating Officer to approach the court for cancellation of bail in case of violation of the conditions imposed therein the said order. Record would reveal that the respondents instead of seeking cancellation of the said bail of the petitioner, owing to the activities alleged in the dossier/grounds of detention post enlargement on bail, have chosen not to seek cancellation of the said bail and instead have taken recourse to invoking of provisions of the Act of 1978 for detaining the petitioner under preventive law, seemingly on account of his involvement in the said FIR, inasmuch as, the reports recorded in the DD’s referred in the preceding paras, inasmuch as, even without proceeding against the petitioner on the basis of the said reports of the DD’s under ordinary criminal law. The aforesaid position obtaining in the matter clearly suggests that the Detaining Authority has acted 5 HCP No. 146/2024 mechanically in the matter that too on the mere asking of the Sponsoring Agency. 7. In so far the aforesaid last plea of the counsel for the petitioner qua non-consideration of the representation submitted by the petitioner against his detention is concerned, it is significant to mention here that the said plea of submission of representation has been specifically pleaded in Para (8) of the petition, in response to which plea, in the reply affidavit filed by the respondent 2 to the petition, it has been stated that the said representation stands forwarded to the Principal Secretary to the Government, Home Department for further necessary action, thus clearly signifying that despite receipt of the representation, submitted by the petitioner, the same has not been considered by the respondents, thereby violating Article 22(5) of the Constitution. 8. It would be significant to mention here that the Apex Court in case titled as State of Manipur and others vs. Buyamayum Abdul Hanan reported in 2022 SCC Online SC 1455, qua preventive detention, at Para 24 has held as under:- “24. In other words, the right of personal liberty and individual freedom which is probably the most cherished is not, in any manner, arbitrarily to be taken away from him even temporarily without following the procedure prescribed by law and once the detenu was able to satisfy while assailing the order of detention before the High Court in exercise of jurisdiction Article 226 of the Constitution holding that the grounds of detention did not satisfy the rigors of proof as a foundational effect which has enabled him in making effective representation in assailing the order of detention in view of the protection provided under Article 22(5) of the Constitution, the same renders the order of detention illegal and we find no error being committed by the 6 HCP No. 146/2024 High Court in setting aside the order of preventive detention under the impugned judgment.” Further, the Apex Court in case titled as K. M. Abdulla Kunhi vs. Union of India reported in (1991) 1 SCC 476 has also ruled that “slackness or callous attitude in considering the representation of the detenue and any unexplained delay in disposal of a representation would be breach of the Constitutional guarantee, rendering the detention illegal.” 9. Viewed thus, for what has been observed, considered and analysed hereinabove, the instant petition succeeds, as a consequence whereof, the impugned order of detention bearing No. 5th/DM/K/PSA of 2024 dated 07.11.2024 passed by the respondent 2 under and in terms of provisions of the J&K Public Safety Act, 1978 is quashed with a direction to the respondents including the concerned jail authority to release the petitioner from preventive detention forthwith, unless is required in any other case. 10. Detention record produced by the counsel for the respondents is returned back in the open court. 11. Disposed of. (JAVED IQBAL WANI) JUDGE Jammu 17.07.2025 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. Sahil Padha 2025.07.22 15:45 I attest to the accuracy and integrity of this document