1 HCP No. 22 of 2025 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP No. 22/2025 Reserved on 13.05.2025 Pronounced on: 29.05.2025 Tariq Ahmad Wani, aged 42 years, S/o Ali Mohammad Wani R/o Uthmula Rajpora, District Pulwama through his wife Rahi Jan. ……. Petitioner(s) Through: Ms. Syed Ainain Qadiri, Advocate Versus 1. Union Territory of J&K through Principal Secretary to Government, Home Department , Civil Secretariat, J&K Srinagar/Jammu 2. District Magistrate, Shopian 3. Superintendent , District Jail, Kishtwar .…Respondent(s) Through: Mr. Mubashir Majid Malik, Dy. AG CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. Petitioner seeks quashment of Order no.196/DMS/PSA/2024 dated 10.10.2024, passed by District Magistrate, Shopian – respondent no.2 (for short “detaining authority”), whereby detenu, namely, Tariq Ahmad Wani S/o Ali Mohd. Wani R/o Uthmulla Pulwama, Tehsil Rajpora, District Pulwama (for short “detenu”) has been placed under preventive detention under the provisions of Clause (a-1) of Subsection (1) of Section 8 of J&K Public Safety Act, 1978, with a view to prevent him from smuggling timber and directing his lodgement in District Jail Kishtwar, precisely on the grounds made mention of instant petition. 2. Respondents have filed the counter/reply affidavit, insisting therein that the detenu being a habitual, professional and notorious timber smuggler of the area and his active involvement is evincive enough to substantiate and his activities are not only serious threat to the public health, forest ecology and national economy but also causes tremendous damage to the forests and made forest damages his habit and profession and, therefore, his remaining at large is a threat for sustaining the conservative values of the society. The 2 HCP No. 22 of 2025 activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by the respondents. 3. The case set up by petitioner in the petition is that the detenu had been falsely implicated in FIR Nos.132/2021 in P/S Shopian, 60/2022 in P/S Rajpora and 10/2024 in P/S Pulwama for the offences punishable under Section 379, 332 IPC and 26 of Forest Act; that the detenu was arrested and after remaining in jail was bailed out in FIR No.132/2021 by the Court of Chief Judicial Magistrate, Shopian on 04.06.2021 which thereafter was made absolute vide Order dated 20.08.2021. Likewise, Challan in FIR No. 60/2022 was presented before the competent court of jurisdiction. In respect of FIR No.10/2024, the detenu has been discharged/released by the Court of competent jurisdiction, but this fact is not mentioned in the grounds of detention. Further submission of counsel for the petitioner is that on the basis of allegations levelled against the detenu in terms of the aforesaid FIRs and the imaginary story being stated in the grounds of detention, the detenu has been booked under the preventive law by detaining authority vide impugned detention order despite the fact that the detenu had remained in jail and was bailed out by the competent Court on 04.06.2021 inasmuch as the order impugned has been passed in a mechanical manner and without application of mind. 4. It is further contended by learned counsel for petitioner that the order of detention does not attribute anything against the detenu, therefore, the preventive detention in the instant case is unwarranted, unjustified and totally irrelevant and without application of mind. The sponsoring agency and the detaining authority have not shown a single incident involving the detenu and have not specified any explicit allegation against the detenu inasmuch as the copies of FIRs and the statement recorded under Section 169 of Cr. P.C, if any, made in terms of said FIRs have not been supplied to the detenu which prevented him to make an effective representation against his detention; inasmuch as the grounds of detention appears to be replica of dossier which unequivocally reflects and shows non-application of mind on the part of detaining authority; that the order of detention is neither approved within the statutory period as prescribed by law nor the detenu has been heard by the Advisory Board either in person or through his counsel. 3 HCP No. 22 of 2025 5. I have heard learned counsel for parties and considered the matter. 6. The learned counsel for petitioner, while seeking quashment of impugned order of detention, has projected various grounds but vehemence supplied by learned counsel during the course of arguments was on the grounds that there has been non-application of mind on the part of detaining authority as detenu had already been admitted to bail by the Court of Chief Judicial Magistrate, Shopian, vide order dated 04.06.2021 in case FIR No.132/2021 registered with police station, Shopian; that even Challan in FIR No.60/2022 was presented before the competent court of jurisdiction and in respect of FIR No.10/2024, the detenu has been discharged/ released by the Court of competent jurisdiction, but this fact is not mentioned in the grounds of detention. Learned counsel has made reference to Mallada K. Sri Ram v. the State of Telangana, (2023) 13 SCC 537; Azad Ali Khan v. State, 2007 (2) JKJ 34; judgment dated 30.12.2020 in WP(Crl) no.112/2020 titled as Mudasir Reshi vs. UT of J&K; WP(Crl) no.67/2023 titled as Irshad Hassan Dass v. UT of J&K; judgment dated 17.05.2024 in WP(Crl) no.725/2022 titled as Suhail Ahmad Bhat vs. UT of J&K. The submissions of learned counsel for petitioner have force, more particularly when the facts of bail having been granted and detenu in one of the cases discharged/released, are not coming forth from perusal of grounds of detention. Non-mentioning of these important facts in grounds of detention, exhibits non-application of mind on the part of detaining authority. This also reflects that detaining authority has not meticulously examined the material record available before him while passing the impugned order of detention which renders the same unsustainable in law. 7. Similar issue has been dealt with by the Supreme Court in “Anant Sakharam Raut v. State of Maharashtra and another” reported in AIR 1987 SC 137, and has held in paragraph 8 as under:- “We hold that there was clear non-application of mind on the part of detaining authority about the fact that the petitioner was granted bail when the order of detention was passed. In the result we set aside the judgement of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith……” 4 HCP No. 22 of 2025 8. The law on the subject is trite. If detaining authority is apprehensive that if detenu is released on bail he may again carry on his criminal activities, then in such situation, the authority should oppose the bail application and, in the event, bail is granted, the authority should challenge such a bail order in the higher forum and that merely on the ground that an accused in detention is likely to get bail, an order of preventive detention should not ordinarily be passed. Para 24 of judgement in Saima Aruna v. State of Telangana and another, AIR 2017 SC 2662, reads as under: “24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav V. District Magistrate, Etah and Ors., this court observed as follows: “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an undertrial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” 9. In Banka Sheela v. State of Telangana, (2022) 9 SCC 415, it has been said by the Supreme Court that if a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. 10. When in the present case, grounds of detention are analysed, it would nowhere mention that detenu after his apprehension in connection with case FIR no.132/2021 was released on bail by the Court of Chief Judicial Magistrate, Shopian, vide order dated 06.04.2021 and in FIR No.10/2024, the detenu was also discharged/ released by the Court of competent jurisdiction, which reflects and depicts non-application of mind on the part of detaining authority. Thus, there is no compelling reason stem out from grounds of detention to show that detenu was likely to be released from custody in near future and taking into account the nature of antecedent activities of detenu, it was likely that after his release from custody he may 5 HCP No. 22 of 2025 indulge in prejudicial activities and it was necessary to detain him in order to prevent him from engaging in such activities. 11. Grounds of detention, on its bare perusal, do not mention that detaining authority was aware of the fact that detenu had already been released on bail by the court of competent jurisdiction. This clearly indicates and shows total absence of application of mind on the part of detaining authority while passing impugned order of detention. In that view of matter, impugned detention order is vitiated. 12. For the foregoing reasons, and without adverting to other grounds raised in the instant petition, this petition is allowed. Impugned order of detention bearing No. 196/DMS/PSA/2024 dated 10.10.2024, passed by District Magistrate, Shopian - respondent no.2, is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case. Disposed of. (Vinod Chatterji Koul) Judge Srinagar 29.05.2025 (Qazi Amjad Secy.) Whether approved for reporting? Yes/No QAZI AMJAD YOUSUF I attest to the accuracy and authenticity of this document Srinagar 29.05.2025 15:47