S. No.3 Regular list HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP 345/2024 ASSADULLAH PARRAY …Petitioner(s) Through: Ms. Humaira Shafi, Advocate. Vs. UNION TERRITORY OF J AND K & ORS ...Respondent(s) Through: Mr. Jehangir Ahmad Dar, GA. CORAM: HON’BLE MR. JUSTICE RAHUL BHARTI JUDGE ORDER 26.03.2025 1. Heard Ms. Humaira Shafi, learned counsel for the petitioner and also Mr. Jehangir Ahmad Dar, GA learned counsel for the respondents. Perused the pleadings and also the documents annexed therein. Also perused the detention record from the end of the District Magistrate Bandipora. 2. Through the medium of this petition filed by petitioner Assadullah Parray through his son Osama Assadullah, writ jurisdiction of this court under article 226 of the Constitution of India is being solicited for issuance of a writ of habeas corpus for quashing the preventive detention of the petitioner and restoring him to his personal liberty which being his fundamental right under article 21 of the Constitution of India is said to have been curtailed by his preventive detention which is alleged to be illegal. 3. The preventive detention of the petitioner has come up to take place by virtue of order No. 17/DMB/PSA of 2024 dated 11.09.2024 passed by the respondent No. 2-District Magistrate Bandipora acting in exercise of power under section 8(a) of the J&K Public Safety Act, 1978 by holding the alleged reported activities of the petitioner to be prejudicial to the “Maintenance of Public Order” thus warranting his preventive detention. 4. It is at the end of the Senior Superintendent of Police, SSP, Bandipora that an exercise was undertaken to get the petitioner under the grip of preventive detention custody and for that purpose the Senior Superintendent Police, SSP, Bandipora vide his communication No. Lgl/PSA-51/2024/39762-68 dated 06.09.2024 came to submit a dossier to the respondent No. 2-District Magistrate Bandipora caricaturing the petitioner as a person with bad antecedents in the sense of being in conflict with law and for that purpose the dossier spelt out petitioner’s involvement in eleven criminal cases as enlisted in the dossier and which are reproduced herein as under: S.No. Involvement Court Present Status of case Remarks 1 FIR No. 166/2010 U/S 13 ULA (P) Act P/S Sumbal NIA Court Bandipora Judgment stage Bailed out 2 FIR No. 22/2014 U/S 13 ULA(P)Act, 132-A PR Act P/S Hajin NIA Court Bandipora Evidence stage Bailed out 3 FIR No. 26/2014 U/S 13 ULA(P) Act, 132-A PR Act P/S Hajin NIA Court Bandipora Judgment stage Bailed out 4. FIR No. 98/2014 U/S 307, 147, 336, 353, 307,427 RPC P/S Hajin Addl. Sessions Court Bandipora Pre-Charge Bailed out 5 FIR No. 22/2015 U/S 13 ULA (P) Act of P/S Hajin NIA Court Bandipora Judgment stage Bailed out 6 FIR No. 23/2015 U/S 307, 224, 341, 148, 149, RPC of P/S Hajin Addl. Sessions Court Bandipora Pre-Charge Bailed out 7 FIR No. 53/2015 U/S 13ULA(P) Act of P/S Sumbal NIA Court Bandipora Pre-Charge Bailed out 8 FIR No. 63/2015 U/S 148, 149, 336, 353 RPC of P/S Hajin JMIC Court Sumbal Evidence Stage Bailed out 9 FIR No. 49/2016 U/S 13 ULA Act of P/S Hajin NIA Court Bandipora Argument Stage Bailed out 10 FIR No. 51/2016 U/S 307, 147, 148, 149, 336, 353, 332, 152 RPC of P/S Hajin JMIC Court Sumbal Pre-Charge Bailed out 11 FIR No. 58/2021 U/S 426 IPC, 04 PPD Act, 03 Sabotage Act of P/S Hajin Addl. Sessions Court Bandipora Argument Stage Bailed out 5. The latest FIR being referred against the petitioner is of 2021. In the dossier after 2021 no mention of any involvement of the petitioner in any criminal case is reported. However, the petitioner is being alleged to be a close constituent member of separatist belonging to Tehreek-e-Hurriyat and Muslim League (Masrat Alam-faction) which being banned organisations/associations. 6. At the time of preparation of dossier keeping in view the scheduled Assembly election for the UT of J&K, the petitioner’s antecedents were reckoned to be of nature which had the purported potential of derailing the election process. The petitioner was thus held to be a potential thrust to law and order in the jurisdiction of the Police Station Hajin and Sumbal and that led to the sponsoring of a case for preventive detention of the petitioner. 7. The respondent No. 2-District Magistrate Bandipora at his end came to draw subjective satisfaction by literally following the text of the dossier and supplanting it under tag of grounds of detention. The dossier as well as grounds of detention if read comparatively are mirror image of each other. 8. The petitioner was directed to be detained and lodged in Central Jail Kote Bhalwal and in this regard, the execution of detention warrant was assigned to Ali Mohammad Kasim No. 117/A of Police Post Aloosa District Bandipora who came to take the petitioner into custody on 12.09.2024 and hanging over the person of the petitioner to Central Jail Kote Bhalwal Jammu. 9. Detention Order 17/DMB/PSA of 2024 dated 11.09.2024 of the respondent No.2-District Magistrate Bandipora came to be approved by the Government of UT of J&K by virtue of Government Order No. Home/PB-V/1944 of 2024 dated 07.10.2024 at which point of time the petitioner had come to be detained. 10. The institution of the writ petition, thus, came to take place on 24.10.2024 in which the petitioner came to set out the grounds of challenge to his detention by making a vehement reliance on the fact that the antecedents of the petitioner taken into consideration for subjecting the petitioner to preventive detention were of stale nature related to the FIRs, the latest of which was 2021 and therefore, for the intervening period from 2021 onwards to September 2024 no single act of omission or commission on the part of the petitioner even to the extent of breach of any term and condition of his bail bond was ever reported and registered by law enforcement agencies of District Bandipora and still the petitioner by his antecedents came to be cursed by the Senior Superintendent of Police SSP Bandipora and by the respondent No. 2-District Magistrate Bandipora making the petitioner an easy catch for subjecting him to preventive detention. 11. The petitioner in his thrust of submission has averred that the respondent No. 2 District Magistrate Bandipora has acted mechanically on a weak dossier submitted by the Senior Superintendent of Police SSP Bandipora. The petitioner has further challenged the legality of his detention by saying that he was not provided with all materials/reports/dossiers on the basis of which the respondent No. 2-District Magistrate Bandipora arrived at his so called subjective satisfaction. The petitioner has further thrown challenge to his preventive detention by posing a question that from the FIRs referred in the dossier how the respondent No. 2 Senior Superintendent of Police SSP Bandipora came to draw an inference that the petitioner’s activities were prejudicial to the Maintenance of Public Order at the relevant point of time in 2024. 12. It is in the backdrop of this challenge to his preventive detention that the petitioner sought quashment of the same. 13. The respondents in their counter affidavit by drawing reference from the Hon’ble Supreme Court of India’s judgments in the case of “HaradhanSaha v. Saha’s Case”, "Borjahan Gorey vs. State of W.B. (1972) 2 SCC550, Ashim KumarRayv.State of W.B. (1973)’’, “Abdul Aziz Vs. District Magistrate, Burdwan (1973) 1 SCC 301 and Debu Mahato v. State of W.B. 1974 AIR (SC)816”, “The Secretary to Government, Public (Law and Order-F) and another Vs Nabila and another (2015) 12 SCC 127”, “Ashok Kumar Vs Delhi Administration & others AIR 1982 SC 1143”, in para ‘E’ of preliminary objections of the counter affidavit, are meaning to submit that the entire material was handed over to the petitioner for enabling him to exercise his constitutional right of making a representation against his preventive detention. 14. From perusal of the detention record produced from the end of the District Magistrate, Bandipora which bears the entire exercise right from submission of the case against the petitioner by the Senior Superintendent of Police SSP Bandipora, it can be safely inferred to have been exercised on the basis of half presented factual picture. The basis for this Court to observe so is that eleven FIRs in which Final Police Reports came to be presented against the petitioner are being referred in the Dossier as well as in the Grounds of Detention whereas the detention record of the office of District Magistrate Bandipora would show that while the Superintendent of Police SSP Bandipora in his dossier by reference to all the pending criminal cases was referring to the fact of petitioner being bailed out in all the pending criminal cases but not even a single bail order issued in favour of the petitioner from the criminal court concerned was put on record for the purpose of apprising the District Magistrate, Bandipora about the facts and circumstances in which the petitioner came to be bailed out despite the alleged seriousness of accusation against him for which he is undergoing trial. 15. Bail order in a criminal case which is being referred in a dossier by sponsoring authority and in the grounds of detention by detention order making authority becomes an essential piece of file process otherwise passing of a detention order would invariably point out that the detention of the petitioner under preventive detention jurisdiction is with a punitive mindset rather than with a preventive detention spirit and the present case is a live exhibit of the same. 16. It is not forthcoming from the dossier as well as from the grounds of detention as to from which particular FIR the caricaturing and portraying of the petitioner came to be drawn out for making him a case for preventive detention custody. In this regard, the alleged antecedents of the petitioner right from the very first FIR No. 166 of 2010 before the law and enforcement agency of the District Bandipora on the basis whereof, the petitioner would have been subjected to preventive detention custody by reference to each and every occurrence for which the eleven FIRs against the petitioner came to be registered resulting in filing of a criminal case against him. 17. Mr. Jehangir Ahmad Dar, learned GA, in addition to the reliance upon the citations as referred in the counter affidavit, also places reliance upon a Division Bench judgment in LPA No. 124/2023 titled “Jahangir Ahmad Wani vs Union Territory of J & K & Anr”, yet there is a scope for the petitioner to say that he could not make an effective representation since he was not furnished with the relevant documents. Mr. Jahangir Ahmad Dar’s submissions that since the petitioner has not cribbed about deficient material being supplied to him rendering him incapable of making representation as such this Court should not pay any heed to the petitioner’s plea that his preventive detention is illegal. 18. Matter of fundamental right is not a matter of plaything and curtailment thereof is not a matter of point scoring between aggrieved citizen and the State. If left to Mr. Jahangir Dar GA’s understanding of constitutional law relating to fundamental rights, then a deaf and dumb person being beaten by Police but not being able to cry upon his pain is not entitled to be attended to for violation of his fundamental right. This argument is registered to be rejected outrightly. 19. District Magistrate Bandipora under dispensation of the J&K Public Safety Act,1978 is not meant to be a rubber stamp of this law and enforcement agency. In fact, the role of a District Magistrate Bandipora under J&K Public Safety Act, 1978 is that of a balancer with a neutral mind set District Magistrate, in terms of his role, is meant to be a saviour of the State and equally guardian of fundamental rights of the citizen. In order to exercise this onerous jurisdiction, the District Magistrate under J&K Public Safety Act, 1978 is supposed to keep his/her faculty fully alive and operational as to whether the law and enforcement agency/ies is/are coming for a preventive detention of a citizen on the basis of half packed and presented facts of a given case. 20. When this court keeps in perspective the aforesaid spirit of the J&K Public Safety Act, 1978, this court finds that the present cause and case of the petitioner was led down by the respondent No. 2-District Magistrate Bandipora and therefore the preventive detention of the petitioner was misconceived on the basis of the material as placed before him. 21. Therefore, the preventive detention No. 17/DMB/PSA of 2024 dated 11.09.2024 read with approval and confirmation order is quashed. The petitioner be restored to his personal liberty forthwith by Superintendent of concerned Jail. 22. The writ petition, thus, disposed of. (RAHUL BHARTI) JUDGE SRINAGAR 26.03.2025. Bisma