1 S. No. 2 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP 37/2023 MOHAMMAD UMAR MALIK …Petitioner(s) Through: Mr. Aabid Hamid Pandit, Advocate. Vs. UNION TERRITORY OF J AND K AND ORS ...Respondent(s) Through: Mr. Hakim Aman Ali, Dy.AG. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 06.02.2025 (ORAL) 1. The petitioner in the instant petition filed under Article 226 of the Constitution has challenged a detention order No. 48/DMP/PSA/23 dated 04.08.2023, (for short the impugned order) passed by respondent 2, (for short the detaining authority) under and in terms of the provisions of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act of 1978). 2. The impugned order has been challenged by the petitioner herein on multiple grounds urged in the petition. 3. Counter-affidavit has been filed to the petition wherein the petition is being opposed, inter-alia, on the premise that the petitioner came to be detained under the provisions of the Act of 1978, validly and legally, after fulfilling all statutory requirements and complying with the Constitutional guarantees inasmuch as, upon deriving of subjective satisfaction by the detaining authority, whereafter the grounds of detention, order of detention, as also the entire material relied upon by the detaining authority, was furnished to the petitioner within the statutory period which grounds of detention and order of detention, was read over and explained to the petitioner in the language he understood and also came to be informed about his right of making a representation against his detention. 2 Heard counsel for the parties as perused the record. 4. Counsel for the petitioner while making his submissions would contend that the detaining authority has failed to follow the mandate of law in drawing and framing the grounds of detention, as in the grounds of detention, no names and particulars of the persons who were allegedly lured by the petitioner to join terrorist ranks or else the details of the activities alleged against the petitioner for aiding and abetting the terrorist activities in and around Kakapora Warpora, area have been spelt out in the grounds of detention and that on account of the said failure of the detaining authority, the petitioner has been rendered incapable of making an effective representation against his detention. According to the counsel for the petitioner, the detaining authority also did not indicate any compelling reasons either in the grounds of detention or in the order of detention, warranting the preventive detention of the petitioner while referring to the bounding down of the petitioner by the Executive Magistrate 1st Class under Section 107/151 CrPC inasmuch as the detaining authority has failed to indicate any activities attributable to the petitioner post his alleged bounding down by the Executive Magistrate 1st Class which would have necessitated the preventive detention of the petitioner. 5. On the contrary, the counsel for the respondents, while opposing the submission of the counsel for the petitioner, would reiterate the stand taken by the respondents in the counter affidavit filed to the petition and would pray for dismissal of the petition. 6. Insofar as the aforesaid first submission of the counsel for the petitioner is concerned, law is no more res-integra and stands settled that the detaining authority, while framing grounds of detention, has to detail out all the activities specifically in explicit terms attributable to the petitioner constituting a case for invoking the provisions of the Act of 1978. This Court in case titled as “Nisar Ahmed Khan v. State of J&K and others” reported in 2011 to JKJ 243 has inter alia held that the detaining authority has not to work on assumptions and presumptions while framing the grounds of detention as the grounds 3 of detention constitute a basis for passing a detention order and, as such, the grounds of detention should not be ambiguous, vague or uncertain or unreasoned which a person ordinarily would not be in a position to understand. 7. Record available on the file inasmuch as produced by the counsel for the respondents manifestly tends to show that the detaining authority indisputably has failed to detail out the activities attributable to the petitioner with specific names, particulars and dates necessitating the detention of the petitioner. Under these circumstances, it can safely be said that the petitioner owing to the aforesaid inaction of the detaining authority has been rendered incapable of making an effective representation against his detention, which in essence is violation of Constitutional right contained under Article 2(5) of the Constitution. 8. Insofar as the aforesaid next submission of counsel for the petitioner is concerned, perusal of the record would reveal that the Police Station, Rajpora, admittedly has furnished a report to the Executive Magistrate, 1st Class, dated 20th of July, 2023, requiring the Magistrate to proceed against the petitioner in terms of section 107/151 CrPC while detailing out his alleged involvement/association with the terrorists, however, it is not forthcoming from the record that the petitioner was ever bound down by the Executive Magistrate in terms of Section 107/151 CrPC. Under these circumstances, the only inescapable conclusion that could be drawn is that the detaining authority has shown its complete non-application of mind while providing in the grounds of detention that the petitioner was bound down by the Executive Magistrate, 1st Class, under Section 107/151 CrPC. 9. It is significant to mention here that the fact of non-application of mind on the part of the detaining authority is also evident from the last para of grounds of detention wherein the detaining authority has provided “that the activities as projected in the forgoing paras of the instant dossier run heavily against you and are highly prejudicial to the security of the State”. The detaining authority indisputably has remained oblivious to the fact that it is framing the grounds of detention and not the dossier. 4 10. Viewed thus for what has been observed, considered, and analyzed hereinabove, impugned order No. 48/DMP/PSA/23 dated 04.08.2023 is not legally sustainable and is accordingly quashed with the direction to the respondents, including the concerned jail authority, to release the petitioner forthwith unless he is not required in any other case. 11. Detention records produced by counsel for the respondents is returned back in the open court. (JAVED IQBAL WANI) JUDGE SRINAGAR 06.02.2025 Ishaq Whether the order is speaking? Yes/No Whether approved for reporting ? Yes/No