HCP No.317/2024 Page 1 of 6 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP No. 317/2024 Reserved on: 31.12.2024 Pronounced on: 03.01.2025 Noor Mohammad Bhat, Aged 54 years S/o; Ghulam Mohammad Bhat R/o; Kondenpeth Habbak Srinagar through his Wife Haseena W/o, Noor Mohammad Bhat R/o Kondenpeth Habbak Srinagar …. Petitioner Through: Mr. Sheikh Hilal, Advocate. Vs. 1. Union Territory of J&K & through Chief Secretary, to Government Home Department J&K Civil Sectt. Jammu/Kashir at Srinagar. 2. District Magistrate, Srinagar 3. Senior Superintendent of Police Srinagar. 4. Station House Officer at igeen District, Srinagar. 5. Superintendent Central Jail, Jammu Kotbhalwal at Jammu. Through: Mr. Mr. Satinder Singh Kalla, AAG with Ms. Rahella Khan, Assisting Counsel. .…Respondents CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE. J U D G M E N T 1. Petitioner, Haseena has filed the instant habeas corpus petition to challenge and seek quashment of the order No. DMS/PSA/25/2024 dated 05.09.2024, for short impugned order, in terms whereof her husband Noor Mohammad Bhat S/o Ghulam Mohammad Bhat R/o HCP No.317/2024 Page 2 of 6 Kondenpeth Habbak, Srinagar, for short detenue, has been detained by respondent No. 2, under the provisions of Public Safety Act, 1978, for short Act, on variety of grounds taken in the memo of the petition. 2. Upon notice respondents have appeared and filed their counter affidavit resisting the claim of the petitioner. FACTUAL MATRIX: 3. The detenue is stated to have falsely been implicated in connection with case FIR Nos. 24/2024, 81/2024, 123/2024, 126/2024, and 127/2024, of police station Nigeen registered under various penal offences. The registration of these FIRs against the detenue are stated to be result of vengeance of one Manzoor Ahmad Dar S/o Habibullah Dar R/o Tailbal at whose instance the above said FIRs have come into being. It is stated that the detenue and his daughter had given loan to said Manzoor Ahmad Dar who, on demand, not only refused to return the same but also filed complaint and sought registration of the cases against the detenue which ultimately resulted in issuance of the impugned order. 4. It is stated that the family members of the detenue approached respondent No. 4-Station House Officer, Nigeen, who instead of looking into the controversy detained them. It is further stated that mere allegations leveled against the detenue in the aforementioned FIRs cannot form a ground for invoking the provisions of Public Safety Act 1978. 5. The impugned order is challenged inter alia on the grounds that the same is bad in the eyes of law; is reflective of non-application of mind on the part of the detaining authority; the dispute involved in the present case explicitly attract the provisions of Negotiable Instruments Act and not the provisions of Public Safety Act; is violative of the fundamental rights of the detenue; is vague, cryptic; the detenue has not been furnished the entire material to enable him to file a representation against his detention; the detenue was already in custody when the detention order was passed. HCP No.317/2024 Page 3 of 6 6. HCP No.317/2024 Page 3 of 6 6. Per contra the respondents in their counter affidavit have, while refuting the allegations of the petitioner, stated that the detenue has got engaged in illicit activities at a young age including lending money to people at usurious interest rates or for extra money without registering, buying and selling land in various locations, and deceiving people into parting with their hard earned money; detenue was found to be sharing the company with chronic miscreants/nuisances/thieves in district Srinagar and with the help of his associates he provokes local youth of his area towards antisocial activity; the anti social activities of the detenue were aimed at to disturb the public order, peace and tranquility; the detenue is involved in case FIR Nos. 24/2024, 81/2024, 123/2024, 126/2024, and 127/2024, of police station Nigeen, registered under various penal offences including 419, 420, 120-B, 506 IPC, 20, 21, 22, „Money Lenders and Accredited Loan Provider Act, 2010‟; the grounds of detention and other allied material, on the basis whereof the detention order has been issued, have been furnished to the detenue; the involvement of the detenue in the acts, for which five FIRs have been registered, has led to the subjective satisfaction of the detaining authority to detain the detenue under preventive detention; the activities of the detenue were found to be highly prejudicial to the maintenance of public order, therefore, preventive detention has been ordered. 7. Heard learned counsel for the parties, perused the detention record and considered the submissions made by the learned counsel for the parties. 8. Learned counsel for the petitioner has mostly laid emphasis on the grounds of non-application of mind, non-furnishing of entire detention material to enable detenue to make an effective representation against his detention. 9. It appears from the perusal of the record that the detenue was involved in FIR Nos. 24/2024, 81/2024, 123/2024, 126/2024, and 127/2024, of police station Nigeen, registered under various penal offences including 419, 420, 120-B, 506 IPC, 20, 21, 22 „Money Lenders and HCP No.317/2024 Page 4 of 6 Accredited Loan Provider Act, 2010‟ and was under custody at the time when the impugned detention order has been passed. 10. The respondents do not, anywhere, reply or reflect that as to how the substantial laws which had been pressed into service against the detenue were not sufficient to deter the detenue from indulging in the alleged subversive activities. There is explicit non-application of mind on the part of the detaining authority for having not taken into consideration the aspect of the substantial laws having been invoked against the detenue and the bail having been granted in one of the alleged criminal case. 11. The contention of the learned counsel for the petitioner that the detenue has not been provided the requisite material so as to enable him to move a representation against his detention cannot be accepted as the respondents have sufficiently shown by the records that the detenue was furnished the documents containing as many as 52 leaves. However, the contention as regards the relevance of such documents cannot be brushed aside as it is well settled that it is the sufficiency of relevant and necessary material that should weigh with the detaining authority in arriving at the subjective satisfaction not the wholly unnecessary, immaterial and irrelevant circumstances. I am fortified in my view by the judgment of the Supreme Court rendered in case titled “Nenavath Bujji Etc Vs. The State of Telangana and Others” reported as 2024 SCC Online SC 367. It would be profitable to reproduce sub-paras (i) (ii) and (iii) of the paragraph 43 herein: (i) “The detaining Authority should take into consideration only relevant and vital material to arrive at the requisite subjective satisfaction. (ii) It is an unwritten law, constitutional and administrative, that wherever a decision making function is entrusted to the subjective satisfaction of the statutory functionary, there is an implicit duty to apply his mind to the pertinent and proximate matters and eschew those which are irrelevant and remote. (iii) There can be no dispute about the settled preposition that the detention order requires subjective satisfaction of the HCP No.317/2024 Page 5 of 6 detaining authority, which, ordinarily, cannot be questioned by the Court for the insufficiency of material. Nonetheless, if the detaining authority does not consider relevant circumstances or considers wholly unnecessary immaterial and irrelevant circumstances, then such subjective satisfaction would be vitiated.” 12. The Supreme Court in case titled “Jaseela Shaji vs. Union of India” reported as (2024) 9 SCC 53, has held that the failure of the respondent to supply all the relevant material to the detenue vitiates the detention. It would be profitable to reproduce paragraphs 29 and 37 of the said judgment herein as: “29. There can be no doubt that it is not necessary to furnish copies of each and every document to which a casual or passing reference may be made in the narration of facts and which are not relied upon by the Detaining Authority in making the order of detention. However, failure to furnish copies of such document/documents as is/are relied on by the Detaining Authority which would deprive the detenu to make an effective representation would certainly amount to violation of the fundamental right guaranteed under Article 22(5) of the Constitution of India. 37.It is thus a settled position that though it may not be necessary to furnish copies of each and every document to which a casual or passing reference has been made, it is imperative that every such document which has been relied on by the Detaining Authority and which affects the right of the detenu to make an effective representation under Article 22(5) of the Constitution has to be supplied to the detenu. In our view, the documents relied on by the Detaining Authority which form the basis of the material facts which have been taken into consideration to form a chain of events could not be severed and the High Court was not justified in coming to a finding that despite eschewing of certain material taken into consideration by the Detaining Authority, the detention order can be sustained by holding HCP No.317/2024 Page 6 of 6 that the Detaining Authority would have arrived at such a subjective satisfaction even without such material.” 13. In view of the ratio laid down in the judgments supra any inaction on the part of respondents to violate the safeguards provided by the statute has been held to be prejudicial to the rights of the detenue. CONCLUSION: 14. In the circumstances, the Court is of the considered view that the safeguards provided by the statute have not been complied with in the instant case resultantly depriving the detenue not only of his statutory right but his cherished right of liberty too. 15. In the above background, the petition succeeds and is allowed as such and as a sequel thereto, the impugned order bearing No. DMS/PSA/25/2024 dated 05.09.2024, is quashed and the detenue Noor Mohamad Bhat S/o Ghulam Mohammad Bhat R/o Kondenpeth Habbak, Srinagar, is quashed and the detenue is directed to be released from the preventive custody forthwith if not required in any other case. 16. The detention record be returned to the learned counsel for the respondents against receipt. 17. Disposed of. (MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR: 03.01.2025 “Shaista-PS” Whether the judgment is reportable: Yes/No. Whether the judgment is speaking: Yes Shaista Rashid Shah I attest to the accuracy and authenticity of this document 15.01.2025 14:31