1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP No. 314/2024 Reserved on: 01.08.2025 Pronounced on: 21.08.2025 Shabir Ahmad Dar, aged 35 years, S/o Abdul Ahmad Dar, R/o Chadder Kulgam, District Kulgam through his wife, Masrat …….Petitioner(s) Through: Mr. M. Ashraf Wani, Advocate Versus 1. Union Territory of J&K through Principal Secretary, Home Department , J&K Govt. Civil Sectt. Srinagar/Jammu 2. District Magistrate, Kulgam ………Respondent(s) Through: Mr. Jahingeer Ahmad Dar, GA CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. Through the medium of this writ petition, Order No.18/DMK/ PSA/2024 dated 27.07.2024, (impugned detention order) passed by District Magistrate, Kulgam - respondent no.2 herein (for short “detaining authority”) whereby detenu, namely, Shabir Ahmad Dar S/.o Abdul Ahad Dar, R/o Chadder District Kulgam, has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of the State is sought to be quashed and the detenu set at liberty on the grounds made mention of therein. 2. The main grounds on which the detention is sought to be quashed are that the grounds of detention are vague, indefinite, cryptic, inasmuch as the detenu shown falsely implicated in FIR no.116/2018 has been acquitted by the court of NIA Shopian/Kulgam. This fact, according to petitioner, is not borne out from the grounds of detention, reflecting non-application of mind on the part of detaining authority. It is further submitted that the grounds of detention are stale as the allegations are of year 2018 whereas the detention order has been passed on 27.07.2024 and, therefore, alleged activities do not have any live & proximate link with detention order. The detaining authority has not furnished the material including dossier, relied upon by it, to detenu to 2 enable him to make an effective representation by giving his version of facts attributed to him and make an attempt to dispel the apprehensions nurtured by detaining authority concerning involvement of detenu in alleged activities. It is also stated that the grounds of detention are formulated by the Superintendent of Police and detaining authority has reproduced the same, therefore, there is non–application of mind on the part of the detaining authority, which vitiates impugned order of detention. 3. Respondents have filed reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State and, therefore, his remaining at large is a threat to the security of the State. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention, have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant. 4. I have heard learned counsel for the parties and considered the matter. I have gone through the detention record produced by counsel for respondents. 5. Though various submissions have been made by counsel for petitioner, yet intriguingly an important aspect of the matter has been brought before this Court during the course of advancement of arguments. He has invited attention of this Court to impugned order of detention, particularly first line thereof which would be relevant to be reproduced hereunder: “Whereas, on the basis of grounds of detention placed before me by the Superintendent of Police Kulgam……” 6. From the above, it is apparent that detaining authority has mentioned in impugned order of detention that it is “on the basis of grounds of detention placed before” him “by the Superintendent of Police Kulgam” that he is satisfied to place detenu under preventive detention. 7. It is important to mention here that detaining authority may get inputs from different agencies, including Senior Superintendent of Police concerned, but formulation of grounds of detention is the exclusive responsibility of detaining authority. It is the detaining authority, who has to go through reports and other inputs received by him from concerned police and other agencies and on such perusal, it has to arrive at a subjective satisfaction that a person is to be 3 placed under preventive detention. It is, therefore, for detaining authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of order of preventive detention. However, in the instant case, it is evident from impugned order of detention that grounds of detention have not been prepared by detaining authority and resultantly impugned detention order is vitiated. 8. Another submission of counsel for petitioner is that the material relied upon by detaining authority has not been furnished to detenu, to enable him to make an effective representation against his detention. Taking into account this submission, it would be relevant to go through the detention record produced by counsel for respondents. The detention record, inter alia, contains “Execution Report” and “Receipt of detention Papers”. It would be advantageous to reproduce relevant portion of “Execution Report” hereunder: “The Contents of PSA warrant one leaf, notice one leaf, grounds of detention three leaves and copy of FIR 83/2017, 116/2018 two leaves, in Urdu/Kashmiri languages which he understood fully. Copy of warrant, notice and grounds of detention (Seven Leaves) handed over to the detenu under proper receipt.” 9. It would also be appropriate to reproduce relevant portion of “Receipt of Grounds of Detention” herein: ….. In compliance to the Government Home Department J&K/ Divisional Commissioner/ District Magistrate Kulgam Order No. 18/DMK/PSA/2024 dated 27.07.2024 the grounds of detention/Notice/Letter addressed to the Detenue/other relevant papers of detention have been served to the detenue namely Shabir Ahmad Dar S/o Abdul Ahad Dar R/o Chadder Kulgam at the time of execution of PSA warrant today on 30.07.2024 consisting of „07‟ leaves..….” Thus, it is unambiguously clear and evident from perusal of Execution Report and Receipt of grounds of detention that only seven leaves have been given to detenu. 10. In grounds of detention, detaining authority has made reference to FIR nos. 83/2017 & 116/2018 and other alleged activities. However, the detention record, as noted above, does not indicate that copies of aforesaid First Information Reports, Statements recorded under Section 161 Cr. P.C. and other material collected in connection with investigation of aforesaid cases was ever supplied to the detenu, on the basis whereof impugned detention order has been passed. The aforesaid material assumes importance in the facts and circumstances of the case. It needs no emphasis, that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory 4 rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after detenu has all the said material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. If detenu is not supplied the material, on which the detention order is based, he will not be in a position to make an effective representation against his detention order. The failure on the part of the detaining authority to supply the material, relied at the time of making the detention order to the detenu, renders the detention order illegal and unsustainable. In this regard I may draw support from the law laid down in the cases of Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; Dhannajoy Dass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed Aasiya Indrabi v. State of J&K & ors, 2009 (I) S.L.J 219. 11. The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987 (2) SCC 22 has held that it is only the procedural requirements, which are the only safeguards available to the detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of the detaining authority. In the present case, the procedural requirements, as discussed above, have not been followed and complied with by the respondents in letter and spirit and resultantly, the impugned detention needs to be quashed. 12. Based on the above discussion, the petition is disposed of and Detention Order No.18/DMK/PSA/2024 dated 27.07.2024, issued against the detenu is quashed. As a corollary, respondents, including Jail Superintendent concerned, are directed to set the detenu at liberty forthwith provided he is not required in any other case. Disposed of. 13. Detention record be returned to counsel for respondents. (Vinod Chatterji Koul) Judge Srinagar 21.08.2025 (Qazi Amjad Secy.) Whether approved for reporting? Yes/No QAZI AMJAD YOUSUF I attest to the accuracy and authenticity of this document 25.08.2025 13:21