Page | 1 HCP 248/2024 Serial No. 07 Regular Cause list HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP 248/2024 CM(4003/2024) Manzoor Ahmad Dar Aged 42 Years S/O Khazir Mohammad Dar R/O Sahipora Tehsil Qazi-abad Kralgund, District Kupwara Through His Wife Amina Begum Aged 40 Years … Petitioner(s) Through: Mr. T.A. Lone, Advocate Vs. 1. UT of J&K Through Principal Secretary to Government, Home Department Civil Secretariat Jammu/Srinagar 2. District Magistrate Kupwara 3. Sr. Superintendent Central Jail Kot Bhalwal Jammu ...Respondent(s) Through: Mr. Faheem Nisar Shah, GA CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE. JUDGMENT ORAL: 1. By this petition, the petitioner, Amina Begum, wife of Manzoor Ahmad Dar @ Mann Peer, S/O Khazir Mohammad Dar, R/O Sahipora Tehsil Qazi-abad Kralgund, District Kupwara, (herein after the “detenue”), has assailed Order No. 06-DMK/PSA of 2024 dated 05.04.2024, (hereinafter for short as “impugned order”), issued by Respondent No. 2, District Magistrate Kupwara, by virtue of which, the detenue has been detained under preventive detention under the provisions of J&K Public Safety Act (PSA), from acting in any manner prejudicial to the security of the UT of Jammu and Kashmir and has been lodged in Central Jail, Kotbhalwal, Jammu, on the grounds taken in the petition. FACTUAL MATRIX: 2. The impugned order has been challenged on the grounds of it being vague and mere assertions of the police and of the detaining authority, resultantly, no prudent person could make an effective representation Page | 2 HCP 248/2024 against the allegations raised against the detenue. The allegation of being an Over Ground Worker of banned militant organization LeT, is baseless and false, the detenue has neither propagated terrorism or secessionist ideology nor has he provided any support to any miscreant. The allegation levelled against the detenue has been fabricated by the police in order to justify the action of the detaining authority against the detenue. 3. The detenue was booked under J&K Public Safety Act on 18.01.2019, the detention order was subsequently revoked by the Government of J&K vide order No. HOME/PB-V/828 of 2020 dated 29.03.2020, the detenue was released from jail on 30.03.2020. The earlier detention order of the detenue was also passed on assumptions and presumptions which compelled the Government of J&K to revoke the detention order dated 18.01.2019. 4. The allegation levelled in the dossier and grounds of detention against the detenue is that the detenue is propagating secessionist ideology among the youth. The detenue was bound down multiple times under preventive laws under Section 107/151 Cr.PC. However, it is submitted that the detenue has never propagated such ideology and there is no evidence to that effect. Moreover, no FIR has been lodged against the detenue. The detenue was called by the police to the police station along with other persons and was directed to participate in parliamentary elections, which the detenue agreed to, as he was already willing to take part in the democratic process. The detenue started participating in the election campaigning for a local political party of J&K in the parliamentary elections and also started to motivate the youth to participate in political meetings. However, to the misfortune of the detenue, on some anonymous complaint, a conspiracy was hatched against the detenue on some wrong information, the Page | 3 HCP 248/2024 detaining authority without conducting any enquiry or investigation called the detenue to the police station, wherefrom the detenue was sent to Central Jail Kotbhalwal, Jammu, where he was informed that he was detained under J&K Public Safety Act 1978. 5. The wife of the detenue approached the concerned Police station and Sr. Superintendent of Police Handwara, where she was assured that the detenue will be released after the parliamentary elections. The detention order and grounds of detention suffer from lack of application of mind and the independent subjective satisfaction has not been arrived at by the District Magistrate, Kupwara. Moreover, the grounds of detention are the replica of the dossier. The detenue was not provided with the detention order, grounds of detention and other relevant material in time, so that the same could be conveyed to the family members of the detenue and an effective representation could be made against the detention order. Even otherwise, the allegations made in the grounds of detention are vague, non-existent and no prudent man could make an effective representation against such allegations. 6. Per contra, in reply filed by respondents, it is stated that the District Magistrate, Kupwara, received a dossier of activities from the Sr. Superintendent of Police, Handwara, vide communication dated 03.04.2024, in respect of detenue and on the basis of the dossier, after due application of mind, the detention order has been issued by the detaining authority. It is stated that on the basis of the alleged activities of the detenue, it had become imperative to detain the detenue under the J&K Public Safety Act, immediately for the maximum period as provided under the Act in the interest of security of UT of J&K. It is further stated that the detenue could not be allowed to execute his plans and to Page | 4 HCP 248/2024 jeopardize the democratic process or to motivate youth indulging into the activities that are detrimental to the security of the UT of J&K. The previous detention order of the detenue was revoked by the Govt. of J&K, but the detenue continued propagating secessionism-terrorism ideology among the gullible youth of the area. He was bound down multiple times under the preventive laws under Section 107/151 Cr.PC, passed by the Ex. Magistrate Qaziabad Kralgund, as such, owing to his determined behavior into the activities which are threatening to the security of the UT of J&K, it became imperative to detain the detenue under the J&K Public Safety Act, 1978, so as to prevent the detenue from further indulging into such activities. 7. Heard learned counsel for the parties and perused the material on record. 8. Perusal of the record reveals that the detention order dated 05.04.2024, was executed on 08.04.2024. The impugned order was confirmed by the Government on 01.05.2024. As many as 17 leaves, which include notice to the detenue, letter address to the Principal Secretary Home Department, copy of the dossier, copy of Istigasa under Section 107/151 Cr.P.C and translation copy of the detention order in Urdu have been furnished to the detenue. The contents of warrants and grounds of detention have been read over and explained to the detenue on 08.04.2024 in English and Urdu language, which he fully understands. 9. Learned counsel for the petitioner has relied upon the judgment dated 30.12.2009, passed by this Court in case titled „Shahmali Vs. State and Ors.‟, bearing HCP No. 131/2009, wherein it has held that the detaining authority has no power to fix the “maximum period” of detention, that is domain of the Government to do so on receipt of report of Advisory Board but to record “maximum period” may have some impact on the Page | 5 HCP 248/2024 minds of the authorities concerned while fixing the period of detention. The relevant paras of the judgment are taken note of hereinbelow: “9. The next contention raised is that in the order of detention impugned it is recorded that the detenue is de- tained and lodged in Kotbhalwal Jail, Jammu for a "maximum period" when the Detaining Authority had no power to fix "maximum period" as the Detaining Authority could at the most fix a period of 12 days as re-quired in terms of sub-section 4 of section 8 of the j&k public safety act. 10. In opposition it has been contended by the learned counsel for the respondents that the period of deten-tion is finally to be decided by the Government, so using the word "maximum period" automatically gets di-luted when the State Government fixes the period of detention. 11. It is trite that the authorities concerned shall have to strictly abide by the procedure as prescribed. The Detaining Authority no doubt has no power to fix the "maximum period" of detention, that is domain of the Government to do so on receipt of report of Advisory Board but to record "maximum period" may have some impact on the minds of the authorities concerned while fixing the period of detention. 12. The similar issue has been set at rest by the Hon'ble Apex Court in the judgment captioned Makhan Singh Tarsikka v. State of Punjab, reported in AIR 1952 Supreme Court 27, wherein it has been held that "the fixing of the period of detention in the initial order itself is contrary to the scheme of the Act and cannot be supported" and it has also been held that "such a direction would tend to prejudice a fair consideration of the petitioner's case when it is placed, before the Advisory Board".” 10. In the instant case, the District Magistrate has referred in the grounds of detention at Para 9 which is the replica of dossier that “it becomes imperative to detain you under the provisions of J&K Public Safety Act 1978, immediately for the maximum period as provided under the said Act.” Page | 6 HCP 248/2024 11. The District Magistrate has no authority to order or even to mention that detenue deserves to be detained for the maximum period as provided in the Act, which is the sole authority of the Government, and not of the detaining authority. 12. Learned counsel for the petitioner has vehemently argued that there is no specific allegation in the grounds of detention which could compel the detaining authority to detain the detenue, in terms of the impugned detention order. He has relied upon the judgment in case titled „Athar Mushtaq Khan v. Union Territory of J&K and Anr.‟ in LPA No. 276/2022, decided on 26.03.2024. The relevant paras of the judgment are taken note of herein: “19. As far as the grounds of detention are concerned, we are of the view that there is no specific allegation against the detenue as to how his activities could be attributed to be prejudicial to the security of the State. The grounds of detention nowhere suggest/ reveal that the detenue had, at any point of time being an active member of banned terrorist organization (Hizbul Mujahideen). Further, there is no specific instance in any of the allegations levelled against him to show that he had been working as an Over Ground Worker, so as to be prejudicial to the security of the State. Therefore,it seems apparent that the grounds of the detention are baseless and vague, without any material being put forth to prove the genuineness of the same. 21. Therefore, we are of the view that the grounds of the detention are baseless, ambiguous and vague, without any material being put forth to prove the genuineness of the same. Detention in preventive custody on the basis of such vague and ambiguous grounds cannot be justified. There is no doubt that preventive detention is largely precautionary and is based on suspicion and the courts are not equipped to investigate into circumstances of suspicion on which such detention order is based. However, the matters to be considered by the detaining authority are whether the person concerned, having regard to his past conduct judged in the light of surrounding circumstances and other relevant material, is likely to act in a manner subversive to law and order. In the present case no such apprehension is forthcoming from the material on record which would warrant preventive detention of the detenue.” Page | 7 HCP 248/2024 13. The detenue was bound down multiple times under Section 107/151 Cr.PC. The detaining authority has stated in the grounds of detention that the ordinary punitive law of the land is not sufficient to curb the subversive activities of the detenue. Though the detenue was bound down multiple times, it has not been stated anywhere as to why the ordinary punitive law was not sufficient to restrain the detenue from the activities as alleged in the grounds of detention. The detaining authority does appear to have applied its mind and has levelled vague allegations against the detenue without arriving at any subjective satisfaction. 14. The Apex Court in case titled „Ameena Begum vs. State of Telangana‟ reported as (2023) 9 SCC 587, has held that the detention order cannot sustain if the same appears to be an outcome of non-application of mind. It would be profitable to reproduce paragraph No. 28 of the said judgment hereinbelow: “……In the circumstances of a given case, a Constitutional Court when called upon to test the legality of orders of preventive detention would be entitled to examine whether (i) the order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied; (ii) in reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute; (iii) power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires; (iv) the detaining authority has acted independently or under the dictation of another body; (v) the detaining authority, by reason of self-created rules of policy or in any other manner not authorized by the Page | 8 HCP 248/2024 governing statute, has disabled itself from applying its mind to the facts of each individual case; (vi) the satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate; (vii) the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale; (viii) the ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached; (ix) the grounds on which the order of preventive detention rests are not vague but are precise, pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and (x) the timelines, as provided under the law, have been strictly adhered to. 15. In view of above, this Court is convinced that the petitioner has been able to prove non-application of mind on the part of the Detaining Authority. 16. Viewed thus, the petition is allowed and the detention Order No. 06- DMK/PSA of 2024 dated 05.04.2024, passed by District Magistrate Kupwara, whereby the detenue, namely, Manzoor Ahmad Dar @ Mann Peer, S/o Khazir Mohammad Dar, R/O Sahipora Tehsil Qazi-abad Kralgund, District Kupwara, has been detained under preventive detention, is quashed, and the respondents are directed to release the detenue from preventive custody forthwith. (MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR: 11.09.2025 “Misba ”  Whether the Judgment is Reportable? No  Whether the Judgment is Speaking? Yes