HCP No. 333/2024 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP No. 333/2024 Reserved on: 03.04.2025 Pronounced on: 11.04.2025 Majid Ashraf Wani, Aged 40 years S/o Mohammad Ashraf R/o Sheshgari Mohalla, Khanyar, Srinagar through his brother Mutahir Ashraf, aged 34 years. ……...Petitioner(s) Through: Mr. Bakhat Parvaiz, Advocate Versus 1. UT of Jammu and Kashmir through Principal Secretary to Government, Home Department J&K, Government, Civil Secretariat, Srinagar/Jammu. 2. Divisional Commissioner, Kashmir, Srinagar. ……Respondent(s) Through: Ms. Nadia Abdullah, Assisting Counsel vice Mr Mohsin Qadri, Sr.AAG CORAM: HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1. Challenge is made in the instant petition to the detention order No. DIVCOM-K/97/2024 dated 25.04.2024, for short “impugned order”, issued by Divisional Commissioner, Kashmir-respondent No. 2 herein, whereby Majid Ashraf Wani Son of Mohammad Ashraf Resident of Sheshgari Mohalla, Khanyar, District Srinagar, hereinafter referred to as “detenue” has been placed under preventive detention, on the grounds taken in the memo of petition. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 333/2024 BRIEF FACTS 2. Precisely, the case of the petitioner is that the detenue has been arrested by the respondents on vague, irrelevant and non-existing grounds. The detenue is stated to be an innocent peace-loving citizen who has been falsely detained under preventive detention without any allegations against him warranting exercise of such power. The petitioner inter alia challenges the impugned detention order on the grounds that he has not been furnished all the material which has been relied upon by the detaining authority in making the detention order. The subjective satisfaction has not been derived by the detaining authority itself which is a sine qua non for passing the order of detention. The grounds of detention have been virtually formulated by the concerned SSP as the dossier submitted by the SSP is the verbatim copy of the grounds of detention. The respondent No. 2 in derogation of law, has not applied his mind as to whether the detention order was required to be passed against the detenue; no mention is made in the detention order or in the grounds of detention that the detenue has been granted bail by the competent court of law reflecting the non-application of mind by the detaining authorities to the facts of the instant case. 3. Per contra, it is stated by the respondents in their counter affidavit that the detenue was involved in the drug peddling activities and had turned into an active member of the drug trafficking network operating in the area of Khanyar and the surrounding areas of Srinagar city, posing a serious threat on the socio- economic fabric of the society, as such, the Police recommended his preventive detention and in this behalf submitted dossier supported by relevant material to the Divisional Commissioner, Kashmir, whereafter the record/material was examined and after finding the preventive detention of the detenue necessary, the Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 333/2024 order of detention was passed with the sole aim and object to prevent the detenue from indulging in the drug trafficking activities. 4. Heard learned counsel for the parties, considered the submissions made and perused the detention record. 5. The perusal of the material placed on record would reveal that the respondents have not effectively controverted the pleas raised by the detenue in his petition. Nothing is said by the respondents insofar as the plea of bail having been granted to the detenue by the competent court of jurisdiction, is concerned. 6. It needs no emphasis that it is only after the detenue has the entire material available, that he can make an effort to convince the Detaining Authority and thereafter Government that their apprehensions, as regards his activities, are baseless and misplaced. The detention record produced by the respondents does not contain any “execution report” by which it could have been inferred as to which of the documents forming basis of detention have been provided to the detenue and in such circumstances, the plea taken by the learned counsel for the petitioner that the entire detention material was not provided to the detenue gains significance and is accepted. 7. Another aspect of the matter is that the detenue has been enlarged on bail in case FIR no. 14/2024 of Police Station Nigeen, a criminal case, reference whereof is made in the grounds of detention and which presumably forms a significant ground for passing detention order against the detenue, has not at all been taken into consideration by the detaining authority as nothing in this behalf is stated anywhere in the detention order or in the grounds of detention. This would unambiguously suggest that the detaining authority has Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 333/2024 not applied its own mind while passing the detention order which is sufficient to render the detention order unsustainable in law. It has consistently been held by the Courts of law that violation of any of the constitutional rights of the detenue, by the detaining authority, puts under cloud the whole detention order. Reliance in this behalf is placed on the recent Judgment of Supreme Court delivered in case titled as Joyi Kitty Joseph v. Union of India & Ors., reported as {2025} SCR 419. Paragraphs 21 and 22 being relevant are taken note of:- “21. The criminal prosecution launched and the preventive detention ordered are on the very same allegations of organised smuggling activities, through a network set up, revealed on successive raids carried on at various locations, on specific information received, leading to recovery of huge cache of contraband. When bail was granted by the jurisdictional Court, that too on conditions, the detaining authority ought to have examined whether they were sufficient to curb the evil of further indulgence in identical activities; which is the very basis of the preventive detention ordered. The detention order being silent on that aspect, we interfere with the detention order only on the ground of the detaining authority having not looked into the conditions imposed by the Magistrate while granting bail for the very same offence; the allegations in which also have led to the preventive detention, assailed herein, to enter a satisfaction as to whether those conditions are sufficient or not to restrain the detenu from indulging in further like activities of smuggling. 22. We, hence, allow the appeal and set aside the order of detention. The detenu shall be released forthwith, if still in custody.” 8. The respondents cannot be expected to take recourse to hollow assertions only, as they were obliged, by law, to see that the detenue has indeed indulged in the similar activities for which he was granted bail and there were reasonable prognosis about his future conduct, in light of the well- Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 333/2024 articulated circumstances, that similar activities would likely be repeated by the detenue. The Supreme Court has been consistently holding that the grounds of detention should always be proximate, pertinent and relevant as the subjective satisfaction of the detaining authority is not immune to judicial review though an exclusive domain of the detaining authority. 9. The respondents have not given any justification muchless a reasonable justification as to why the detenue was not put under preventive detention during the time the detenue was in their custody for 33 days after having been arrested in case FIR no. 14/2024 on 17.01.2024 by police station Nigeen. by The Apex Court in the case of Sama Aruna v. State of Telengana and &anr., (2018) 12 SCC 150, has observed in paragraph no. 24 as under: "24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and Ors. 9, this Court observed as follows:- “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” (Emphasis supplied) 10. Viewed thus, the petition is allowed and detention order No. DIVCOM- K/97/2024 dated 25.04.2024, issued by Divisional Commissioner, Kashmir- Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 333/2024 respondent No. 2 herein, detaining the detenue Majid Ashraf Wani Son of Mohammad Ashraf Resident of Sheshgari Mohalla, Khanyar, District Srinagar, is quashed and the respondents are directed to release the detenue forthwith. 11. Registry to return the detention record to the learned counsel for the respondents against receipt. 12. Disposed of. (MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 11.04.2025 “Mohammad Yasin Dar” Whether the Judgment is reportable: Yes/No. Whether the Judgment is speaking: Yes/No. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document