IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 26.05.2025 Pronounced on: 06.06.2025 WP(Crl) No.282/2023 KAISER AHMAD SHEIKH ...PETITIONER(S) Through: - Mr. Asif Iqbal, Advocate. Vs. UT OF J&K & ORS …RESPONDENT(S) Through: - Mr. Waseem Gul, GA. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The petitioner has challenged detention order bearing No.02-DMG- PSA-2023 dated 06.06.2023, issued by District Magistrate, Ganderbal, in exercise of powers conferred by Section 8 of the J&K Public Safety Act, 1978, whereby the detenue, namely, Kaiser Ahmad Sheikh has been placed under preventive detention so as to prevent him from indulging in the activities which are prejudicial to the security of the country, particularly the UT of J&K. 2) It has been contended by the petitioner that the impugned detention order has been passed without application of mind as the grounds of detention are vague, non-existent and stale on which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material has not been provided to the petitioner. It has been further urged that there has been non- application of mind on the part of detaining authority while passing the 2 WP(Crl) No.282/2023 impugned detention order as the detenue was already admitted to bail in the FIR mentioned in the grounds of detention but the said fact is not mentioned in the grounds of detention and that the . 3) The respondents, in their counter affidavit, have contended that none of the legal rights of the petitioner have been infringed or violated. It has been further contended that the activities of the detenue are highly prejudicial to the security of the State. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. It has been further contended that the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is also averred in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit. 4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments, was on the following grounds: (i) That there has been non-application of mind on the part of the detaining authority as the detenue has already been admitted to bail in FIR No.209/2020 registered with P/S Ganderbal, but this fact has not been mentioned in the grounds of detention. 3 WP(Crl) No.282/2023 (ii) That the impugned order of detention is based upon stale incidents having no proximate link to the activities alleged to be prejudicial to the maintenance of security of the country/UT of J&K. 5) In rebuttal, learned counsel for the respondents has made an attempt to justify the passing of the order impugned by contending that the detenue is a habitual criminal, inasmuch he is involved in various criminal acts and, as such, the Detaining Authority was well within its jurisdiction to pass the impugned order of detention as there was every likelihood of the detenue indulging in similar activities. It has been further contended that all the documents relied upon by the Detaining Authority were, provided to the detenue and in token of having received the same, the detenue has signed the receipt. It is also urged that the contents of the documents were read over and explained to the detenue in the language understood by him. 6) So far as the first ground of challenge is concerned, from a perusal of the material available on file, the ground regarding non-application of mind on the part of the detaining authority appears to be forceful, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had already been admitted to bail in FIR No.209/2020 registered with P/S Ganderbal in terms of the order passed by the court of competent jurisdiction. The petitioner has placed on record a copy of order dated 12.10.2022 passed by learned Additional Sessions Judge TADA/POTA, Srinagar, whereby he has been enlarged on bail in a case arising out of FIR No.209/2020, but this fact has not been made mention of in the grounds of detention by the detaining authority. The non- 4 WP(Crl) No.282/2023 mentioning of this important fact in the grounds of detention exhibits non- application of mind on the part of detaining authority. This shows that the detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law. I am supported in my aforesaid view by the judgments of the Supreme Court rendered in the cases of Anant Sakharam Raut v. State of Maharashtra & Ors. AIR 1987 SC 137, Rekha v. State of T.N. (2011) 5 SCC 244, and Rushikesh Tanaji Bhoite v. State of Maharashtra and others, (2012) 2 SCC 72. 7) Next it has been contended by learned counsel for the petitioner that the impugned order of detention has been passed on the basis of stale incidents having no proximate link with the activities alleged to be prejudicial to the maintenance of security of the State. 8) A perusal of the grounds of detention reveals that the incident referred therein pertain to the years 2020, that is more than three years prior to the passing of impugned order of detention. There is no reference to any recent incident involving the petitioner in the grounds of detention. Thus, it is clear that the order of detention has been based on past and stale incidents. 9) The Supreme Court in the case of Sama Aruna v. State of Telengana and & anr, (2018) 12 SCC 150, while holding that the incidents which are said to have taken place long back, cannot form basis for being satisfied that the detenue is going to engage in similar activities, observed as under: 5 WP(Crl) No.282/2023 “17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.” From the aforesaid enunciation of the law on the subject, it is clear that there has to be a live and proximate link between the past conduct of the detenue and the activities alleged to be prejudicial to the security of the State. In the instant case, the said link is completely missing as the time between the order of detention and the incidents referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention, therefore, cannot be sustained. 10) For the afore-stated reasons, the petition is allowed and the impugned detention order is quashed. The respondents are directed to release the petitioner from the preventive custody forthwith, provided he is not required in connection with any other case. 11) The record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 06.06.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 06.06.2025 02:26