HCP 102/2024 P a g e | 1 IN THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP 102/2024 Reserved on:07.08.2025 Pronounced on: 28: 08 :2025 ARSALAAN MOHI-UD-DIN SHEIKH, AGED 25 YEARS S/O GHULAM MOHI-UD-DIN SHEIKH R/O LACHMANPORA BATMALOO SRINAGAR THROUGH HIS FATHER GHULAM MOHI-UD-DIN SHEIKH, AGED 60 YEARS …Petitioner(s) Through: Mr. Wajid Haseeb, Advocate Vs. 1. UT OF JAMMU AND KASHMIR, THORUGH PRINCIPAL SECRETARY, HOME DEPARTMENT, J&K GOVT., CIVIL SECTT. SRINAGAR/JAMMU 2. DISTRICT MAGISTRATE, SRINAGAR 3. SR. SUPERINTENDENT OF POLICE SRINAGAR ...Respondent(s) Through: Ms. Nadiya Abdullah, AC vice Mr. Mohsin Ul Showkat Qadri, Sr.AAG CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI,JUDGE JUDGMENT 1. The petitioner is assailing Order No.DMS/PSA/02/2024 dated 29.03.2024 hereinafter for short to be referred as “the impugned order”, issued by the District Magistrate Srinagar by virtue of which Arsalan Mohi-ud-din Sheikh S/o Ghulam Mohid-ud-din Sheikh R/o Lachmanpora Batamaloo, Srinagar, for short to be referred as “the detenue”, the son of the petitioner, has been detained under the provisions of the J&K Public Safety Act (PSA) 1978 from acting in HCP 102/2024 P a g e | 2 any manner prejudicial to the maintenance to the security of the state, on the grounds taken in the memo of the petition. 2. Brief facts of the case, as pleaded in the petition, are that the detenue is peace loving citizen, having never indulged in any subversive activity. The detenue has been falsely implicated in a case FIR 38/2023 of Police Station Nowhatta, Srinagar. The detenue though having been admitted to bail by the competent court of law on 10.02.2024, was not released but was detained under 107 of the Code of Criminal Procedure and while being in custody the detenue was shifted to Central Jail Srinagar and was detained in terms of the impugned order. 3. Feeling aggrieved of the impugned order the petitioner is challenging the same by the medium of this petition, inter alia, on the grounds that there is no nexus of the allegations with the detenue being fabricated; the impugned order appears to have been wrongly issued against the detenue, as the detenue has never associated himself with any person or organization as referred to in the grounds of detention; that the allegations made in the grounds of detention are vague, non- existent and no prudent man can make a representation against such an unjustified and unreasonable detention order; that there is no specific allegation against the detenue in the entire grounds of detention, therefore the satisfaction recorded by the detaining authority is vague and the impugned order suffers from non- application of mind on the part of the detaining authority; that the allegations alleged against the detenue in the FIR as occurred on 16.10.2023 whereafter the detenue was arrested and released on bail HCP 102/2024 P a g e | 3 and later on bound down under 107 Cr.PC of which there is no violation alleged and yet the impugned order was issued five months later against the detenue; that there is no mention of the detenue having been admitted to bail made in the impugned order; that there are no compelling reasons spelled out by the detaining authority that warranted issuance of the impugned order; that the impugned order is the replica of the Police Dossier which suggests that the detaining authority has not issued the impugned order by proper application of mind; that the representation filed by the petitioner against the impugned order has not been considered in due course of time nor the detenue was provided the entire material on the basis whereof his detention was ordered. 4. 4. Upon notice, the respondents appeared and filed their counter affidavit resisting the claim of the petitioner primarily on the grounds that the assertions made in the petition are baseless, the detenue was found involved in various anti-national activities; that he had a criminal bent of mind, the detaining authority has carefully examined the evidence and information which points towards the involvement of the detenue; that the detenue was assessed to be a potential threat for maintaining the public order; that the grant of bail in the criminal offence cannot debar the detaining authority to order preventive detention of an individual; that the safeguards provided in the act have been judiciously followed which includes the safe guard provided the Article 22(5) of the Constitution of India; that the entire material relied upon by the detaining authority has been supplied to the detenue within the statutory period in terms of section 13 of the Act; HCP 102/2024 P a g e | 4 that the detenue was informed of his right to make a representation against his detention order of chooses. 5. I have heard leaned counsel for the parties, perused the impugned order and considered the submissions made by learned counsel for the parties. 6. It seems from the detention records that the detenue has been arrested in connection with his involvement in a case FIR 38/2023 of Police Station Nowhatta, Srinagar in which he was admitted to bail by the competent court of law and subsequent thereto he was detained under preventive detention by the respondent No.2. The preventive detention of the detenue has been ordered on the same allegations as contained in the FIR supra in which he was granted bail. 7. The perusal of the detention record would further reveal that the detenue has not been supplied the material on the basis whereof his detention has been ordered and there is absolute no mention of the facts anywhere in the records that the detenue was in fact admitted to bail. It also transpires from the perusal of the records that the detaining authority has not mentioned as to what were the compelling circumstances that weighed with the detaining authority to order preventive detention of the detenue and as to why the substantive laws were insufficient to deter the detenue from indulging in the alleged subversive activities. 8. The non-application of mind on the part of the detaining authority is writ large on the face of the record as the detaining authority not only has failed to record as to why the preventive detention of the detenue is warranted despite his release on bail in the same case in which he HCP 102/2024 P a g e | 5 was sought to be detained, but has also failed to even reflect such a fact in the record. 9. The Apex Court in case titled “Anant Sakharam Raut and Ors vs. State of Maharashtra and Anr.” reported as AIR 1987 SC 137 has held that the detention order cannot sustain if the same appears to be an outcome of non-application of mind. The detaining authority in the instant case has altogether lost sight of an important fact that the detenue has been granted bail in respect of the allegations for which he has been detained under preventive detention inasmuch as the counter affidavit does not contain any specific averment in this behalf. All that is reflected therein is that the respondents have the privilege of power and authority to pass detention order even after the bail has been granted in favour of the accused. This being a general assertion proves nothing, but non-application of mind on part of the detaining authority. The relevant extract of the said judgement is reproduced hereinbelow: “We are not satisfied that this is a fit case to resort to preventive detention. We refrain from referring to the other grounds urged before us and from examining them. The petitioner is entitled to succeed on the first ground. We hold that there was clear non-application of mind on the part of the 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 Judgment of the Bombay High Court under appeal, quash the order of detention and direct that the petitioner be released forthwith. The Appeal and the Writ Petition are allowed without any order as to costs.” 10.The Apex Court in case titled “Jai Singh and Ors. Vs State of Jammu and Kashmir” reported as AIR1985SC 764 has observed that if the detention order is verbatim copy of the dossier, it speaks about non- application of mind by detaining authority. The liberty of a subject is HCP 102/2024 P a g e | 6 a serious matter and it is not to be trifled in this casual, indifferent and routine manner. 11.The court is convinced that the petitioner has been able to prove that the detaining authority has not applied its mind while issuing the impugned order and since the petitioner has succeeded in proving his case on the factum of non-application of mind, there is no need to go into other grounds of the challenge. 12.Viewed thus, the petition is allowed and the detention order No. DMS/PSA/02/2024 dated 29.03.2024 passed by District Magistrate, Srinagar, whereby the detenue namely, Arsalan Mohi-ud-din Sheikh S/o Ghulam Mohi-ud-din Sheikh R/o Lachmanpora Batamaloo, Srinagar, has been detained, is quashed and the respondents are directed to release the detenue forthwith. (MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR: 28-08 -2025 Mubashir 1. Whether the judgment is speaking: Yes/No 2. Whether the judgment is reportable: Yes/No