1 HCP No. 370/2024 Supple -1 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 10th April, 2025 Pronounced on:09.07.2025 (Through virtual mode) HCP No. 370/2024 Sahil Zahoor Chunka Through his father Zahoor Ahmad Chunka s/o late Ghulam Qadir Chunka r/o Nowhatta, Roshangeer Mohalla (Syed Pora), Srinagar …Petitioner(s) Through: Mr. Danish Majid Dar, Adv. vs. 1.UT of J&K, through Principal Secretary to Govt. (Home) Department Civil Sectt. Srinagar, 2.District Magistrate, Srinagar. 3. Superintendent Central Jail Kotbalwar, Jammu. ...Respondents. Through: Ms. Nadiya Abdullah, AC vice Mr. Mohsin S. Qadri, Sr. AAG CORAM: Hon’ble Mr. Justice Mohd. Yousuf Wani, Judge. JUDGMENT 1. Impugned in the instant petition, filed on behalf of the petitioner/detenu, under the provisions of Article 226 of the Constitution of India, is the order of detention bearing No. DMS/PSA/35/2024 dated 18.11.2024, issued by the respondent No. 2 i.e. District Magistrate, Srinagar (hereinafter referred to as the Detaining Authority for short), in exercise of its powers vested under Section 8 (4) of the Jammu and 2 HCP No. 370/2024 Kashmir Public Safety Act, 1978 (hereinafter referred to as PSA for short) whereby the petitioner/detenu was ordered to be detained and lodged in the Central Jail, Kotebalwal for a period to be specified by the Government, with a view to prevent him from acting in any manner prejudicial to the security of the State. 2. On behalf of the petitioner/detenu, issuance of writs in the nature of Certiorari and Mandamus, have been sought for quashment of the impugned detention order, consequent release of the petitioner/detenu, and payment of an amount of Rupees Ten lacs on account of compensation for violation of human rights. 3. The impugned detention order has been assailed through the instant petition on the grounds that petitioner/detenu on 20th of Nov. 2024 was called to the Police Station Nowhatta, where he was detained and sent to the Central Jail Kotebalwal, Jammu on 21.11.2024, on the pretext of the said order. That same has been passed by the learned detaining Authority without any application of mind while being wholly and solely influenced by the police dossier. That the petitioner/detenu has been denied his right of making an effective representation under Article 22 (5) of the Constitution as he was not furnished with the copies of the documents/material as relied upon by the learned detaining Authority, while passing the same. That the contents of the documents basing the said order have not been explained to the detenu in his local and understandable language. That the said impugned order does not make mention of any new incident, apart from mechanically making reference to the previous FIRs’ in which detenu has already been bailed out. That none of the bail orders have been assailed for 3 HCP No. 370/2024 cancellation thereof and as such the issuance of the impugned order depicts non application of mind on the part of the detaining Authority. That the grounds of detention do not make mention of any pending criminal cases before trial courts. That the petitioner/detenu has not violated any condition of the bail orders. That the impugned detention order apparently seems to be based on unjustified apprehensions. That the detenu is the sole bread earner for his family and his parents are aged and not in a position to maintain themselves. That the impugned detention order is violative of the right to life and personal liberty of the detenu, guaranteed under Article 21 of the Constitution. 4. The respondents through their reply affidavit filed by the learned detaining Authority, have resisted the instant petition on the grounds that, same is not maintainable as none of the legal or constitutional rights of the petitioner/detenu stand violated. That the petitioner/detenu has not approached this Court with clean hands, as the petition has been filed on baseless and untrue grounds. That the detention order has been passed by the learned Detaining Authority in exercise of its powers vested under Section 8 (4) of the PSA, in order to prevent the petitioner/detenu from acting in any manner prejudicial to the security of the State, as there was sufficient material against him, suggesting his at large being prejudicial to the interests of security of the State. That the detention order impugned in the petition has been passed on the subjective satisfaction and upon application of mind by the learned Detaining Authority. That preventive detention is designed to protect the society and the fundamental concept of the preventive detention is to prevent an individual from indulging in any action in 4 HCP No. 370/2024 future, which may prove detrimental to the security of the State. That the detention order was passed on a reasonable prediction of future behavior, considering the petitioner/detenu’s past conduct in the light of the surrounding circumstances. That there is a direct and immediate link between the petitioner/detenu’s past conduct and his apprehended future activities. That the collective assessment of the grounds of detention has led the learned Detaining Authority to reach a subjective satisfaction for placing the petitioner/detenu under the preventive detention. That the activities in which the petitioner/detenu has indulged, are highly objectionable and prejudicial, which are adversely affecting the peace and tranquility in the society. That the petitioner/detenu was deeply influenced by radical ideology from his very early age. That he came into contact with active terrorists and OGW’s of TRF, who motivated him to work for the TRF banned outfit. That the petitioner/detenu is involved in the series of following FIRs’. “a. Case FIR No, 96/2025 U/S 147, 148, 149,336,332,427,353,152,307-RPC b. Case FIR No. 111/2015 U/Ss 147,148,149,332,427-RPC c. Case FIR No.88/2016 U/S 188, 148,149,336,332,152-RPC d. Case FIR No. 41/2018 U/Ss 307, 341-RPC e. Case FIR No. 37/2021 U/Ss 506-IPC 13, 18, UAP of P/S Nowhatta.” That the normal law has been found to have failed to deter him from indulging in such activities as such his preventive detention is warranted under provisions of PSA 1978 and it has been become necessary at this point of time. That the details of the illegal activities of the petitioner/detenu are delineated in the grounds of detention as also in the dossier. That the learned Advisory Board constituted under 5 HCP No. 370/2024 Section 14 of the PSA upon examination of the case of the petitioner/detenu, accorded approval as per its opinion on reference. 5. The learned Detaining Authority in its reply affidavit has also placed reliance on the authoritative judgments of the Hon’ble Apex Court delivered in “Naresh Kumar Goyal vs. Union of India and ors (2005) 8 SCC 276; Union of India vs Simple Happy Dhakad, AIR 2019 SC; Gautam Jain vs Union of India & Anr 2017 (1) J&K Law Times Vol. 1 (SC) P.1; 6. I have heard the learned counsel for the petitioner Mr. Danish Majid Dar, Advocate and Ms Nadiya Abdullah, learned Assisting Counsel for the respondents. 7. Learned counsel for the petitioner while reiterating his stand taken by him as per the averments of the petition, contended that the petitioner/detenu is innocent and has never been involved in the alleged activities. That the petitioner/detenu has never been an OGW of any banned outfit and he has also never provided any support or assistance to any terrorist(s) as alleged. He contended that the petitioner/detenu was called on 20.11.2024 by P/S Nowhatta & detained by the police and sent to Kotebalwal Jail, Jammu on the pretext of the impugned detention order. He further contended that the petitioner/detenu was earlier also detained under the provisions of PSA, by the learned detaining authority upon passing the order No. DMS/PSA/75/2019 dated 16.08.2019, which was however revoked by the Respondents, which is evident from the order dated 23.10.2020 passed on an earlier petition bearing No. WP (Crl) No. 476/2019. 6 HCP No. 370/2024 The learned counsel further contended that there appears to be no livelink or proximity between the last alleged act of the petitioner/detenu dated 10th Oct. 2021 leading to the registration of case FIR No. 37/2021 of PS Nowhatta and the need for issuance of the impugned detention order dated 18th Nov. 2024, having a gap of more than three years. He also contended that since his arrest in the case FIR No. 37/2021 on 10th Oct. 2021, the petitioner/detenu remained continuously under detention in the said case FIR, until he was released and was again called to the police station on 20.11.2024 and detained under the impugned detention order dated 18th Nov. 2024. The learned counsel also contended that the charge against the petitioner/detenu as per case FIR No. 37/2021 of PS Nowhatta, is totally baseless, and he stands already released in all the case FIR Nos., some of which are pending trial and there is no complaint/allegation against him, regarding violation of any bail conditions. Learned counsel also contended that petitioner did not assail any of the bail orders. The learned counsel for the petitioner/detenu also contended that the procedural guarantees under Article 22 (5) and Section 13 of the PSA were observed in breach as the copies of FIR and the statements of witnesses recorded during the investigation of the cases as well as the grounds of detention, were not furnished to the petitioner/detenu in time, thus disabling him to make an earliest representation against his detention. He also argued that while the criminal cases were pending trial against the petitioner/detenu, there was no justification for his preventive detention in parallel and the 7 HCP No. 370/2024 respondents even if aggrieved, could have assailed the bail orders, which has not been done. The learned counsel in support is his arguments, placed reliance on the judgments of this Court passed in “Bashir Ahmad Dar vs Union Territory of J&K and Anr, WP(Crl) No. 06/2021 decided on 15th July, 2022; Imtiyaz Ahmad Chikla vs Union Territory of J&K and Anr, WP (Crl) No. 150/2021, decided on 18th July, 2022; and Sajjid Zahoor Khan vs Union Territory of J&K and Anr, WP(Crl) No. 35/2023, decided on 25th August, 2023.” While placing reliance on the aforesaid judgments of this Court, the learned counsel for the petitioner/detenu submitted that it has been held in WP (Crl) No. 06/2021 and WP (Crl) No. 150/2021 cited supra that, “An order of preventive detention becomes unsustainable in law, if the detenu has not been provided with all the material that has formed the basis of detention.” Learned counsel further contended that grounds of detention basing the impugned order are the replica/ditto copy of the police dossier, thus devoid of application of mind on the part of the learned detaining authority. The learned counsel for the petitioner prayed for setting aside of the impugned order of detention and release of the petitioner/detenu. 8. Per contra, the learned counsel representing the respondents Ms Nadiya Abdullah learned Assisting counsel also reiterated the stand taken in the reply affidavit. She contended that the 8 HCP No. 370/2024 detention order impugned in the petition does not suffer from any illegality or perversity, as the same was passed by the learned Detaining Authority in exercise of its powers vested in it, in terms of the provisions of Section 8 (4) of the PSA, upon his due application of mind, having regard to the conduct of the petitioner/detenu and his apprehension of repeating the commission of unlawful activities. She submitted that the object of the preventive detention is to prevent an individual from committing any illegal activity prejudicial to the security of the State or the maintenance of the social order and not to punish him. She further contended that the preventive detention is not the parallel proceeding of a trial, which is held by a court and is concluded on the basis of the evidence. She further contended that the petitioner/detenu was working as an upper ground worker of banned outfit-TRF, who was carrying out anti-national activities by providing logistic support to the terrorists. It was also contended by the learned Assisting Counsel that the learned Advisory Board constituted under Section 14 of the PSA on reference, examined the case against the petitioner/detenu and made its opinion as conveyed vide order dated 10th Dec. 2024 that the preventive detention of the petitioner/detenu appears to be imperative, with a view to prevent him from acting in any manner prejudicial to the security of the State. She further contended that the procedural formalities as mandated under Article 22(5) of the PSA were complied with by furnishing to the petitioner/detenu copies of detention order and the grounds of detention immediately upon his arrest and the grounds of detention were read over and explained to him in his local language. The 9 HCP No. 370/2024 learned UT counsel further contended that the petitioner/detenu at the time of furnishing him with copies of detention order and the other documents basing the same was apprised that he has a right to make a representation to the Government in respect of his detention. She contended that even the grant of bail in criminal offences cannot debar the Detaining Authority to order the preventive detention of an individual, which appears to be imperative and unavoidable. She also contended that the preventive detention is aimed at to protect the society and that there is immediate and direct link between the petitioner/detenu’s past conduct and likelihood of his repetition of the same. On the basis of her reliance placed on the case titled as “Gautam Jain vs Union of India & Anr 2017 (1) J&K Law Times Vol. 1 (SC) P.1”the learned UT counsel argued that the personal liberty of an individual may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. That where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge, in case prosecution fails to bring home his guilt. That, however, where such a person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also to adduce evidence in his defense. That, however, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial. That it’s aim and object is to save the society from the activities that are 10 HCP No. 370/2024 likely to deprive a large number of people of their right to life and persona liberty. That in such a case, it would be dangerous for the people to wait and watch, as by the time, the person having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to the life and property. The learned UT counsel in support of her contentions also placed reliance on the authoritative judgment of the Hon’ble Apex Court cited as “Union of India & Anr vs Dimple Happy Dhakad, Criminal Appeal No. 1064/2019 decided on 18th July, 2019” as also the judgments of this Court passed in “WP (Crl) No. 251/2019 decided on 7th February, 2020; LPA No. 28/2020 decided on 28th of May 2020, in case titled Mian Ab Qayoom vs.Union Territory of J&K.” On the strength of the reliance placed on the above referred judgments, the learned UT counsel contended that it has been held in the cited judgments that preventive detention is devised to afford protection to the society. That Court must be conscious that the satisfaction of the Detaining Authority is “subjective” in nature and the court cannot substitute its opinion for the subjective satisfaction of the Detaining Authority and interfere with the order of detention. That it was also held in one of the relied upon cases that, “However, where an individual’s liberty comes in conflict with the interests of the Security of the State or maintenance of public order, then the liberty of the individual must give way to the larger interest of the nation.” 9. The learned UT counsel prayed for dismissal of the petition. 11 HCP No. 370/2024 10. I have perused the instant petition, reply affidavit filed by the respondents and the copies of documents enclosed with the petition. I have also gone through the xerox copy of the detention record produced by the learned counsel for the respondents. The record of the earlier petition of the detenu WP (Crl) 476/2019, decided on 23.10.2020 for having been rendered infructuous has also been perused. 11. It was contended by the learned counsel for the petitioner/detenu that the petitioner/detenu was bailed out in all the case FIR Nos. including 37/2021 of PS Nowhatta under Sections 13 and 18 of the ULA(P) Act, only after the competent Trial Courts were convinced in the light of the evidence that the allegations/charge against the petitioner/detenu do not seem to be prima facie true. However, such opinions of the learned Trial Courts is deemed to have been made for the limited purpose of consideration of bail applications and are always subject to the outcome of the trial. 12. It is the admitted case of the learned detaining authority that the impugned order was passed keeping in view the strong apprehensions/inputs received from sensitive field sources regarding the involvement of the petitioner/detenu in the unlawful activities as an OGW. However, the learned detaining Authority has not been able to mention any specific overt act of the detenu regarding his alleged conduct. 13. Since the registration of the last case FIR No. 37/2021 of P/S Nowhatta, against the petitioner, the respondents have not been able to allege any overt act of the detenu. 12 HCP No. 370/2024 14. The earlier detention order dated 16.08.2019 issued by the learned Detaining Authority, was revoked as against the detenu 15. In the opinion of this Court, there appears to be no proximate or livelink between the circumstances/ allegations leading to the registration of as many as five cases including the last case FIR No. 37/2021 of PS Nowhatta and need for issuance of the impugned detention order, maintaining a gap of more than three years. The impugned detention order on this account, appears to be suffering from illegality. This Court feels fortified in its opinion by the authoritative judgment of the Hon’ble Supreme Court reported in “Rajinder Arora Vs. Union of India and others” AIR 2006 (4) SCC 796, decided on 10.03.2006”. The relevant paras of the judgment are reproduced as hereunder:- “The conspectus of the above decisions can be summarized thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the livelink between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.” 16. The learned Detaining Authority has not addressed the aspect as to how normal criminal law is inadequate to deal with the 13 HCP No. 370/2024 petitioner/detenu. The petitioner/detenu stands admitted to bail by the competent Trial Courts in all the case FIR Nos, as itself admitted by the learned detaining Authority with strict conditions appended to the bail orders. Said conditions seem to be sufficient to regulate and keep surveillance on the activities of the petitioner/detenu. It is not the case of the learned Detaining Authority that the bail orders were assailed before any competent forum and prayer of the UT for cancellation of the bail was not allowed. It is also not the case of the respondents that the petitioner/detenu immediately after his release in the case FIR No. 37/2021 of PS Nowhatta pursuant to the bail order, indulged in any illegal activity, with any specific allegation. On this account also, the issuance of the impugned detention order was not unavoidable. 17. In “Rekha vs. State of Tamil Nadu, (2011) 5 SCC 244”, the observations made by the Hon’ble Apex Court at Paras 21, 29 & 30 deserve a needful mention: “21. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year’s imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? *** 29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the Rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.” “30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant 14 HCP No. 370/2024 provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.” 18. In “Vijay Narain Singh Vs. State of Bihar, (1984) 3 SCC 14”, the Hon’ble Apex Court has held at Para 32 of the judgment through Hon’ble E.S.Venkataramiah, J. (as the Chief Justice then was) as under:- “32....It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an Accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorizing such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” 19. In “A.K.Roy Vs. Union of India, (1982) 1 SCC 271” it was held at Para 70 of the judgment as under:- “70. *** We have the authority of the decisions in … for saying that the fundamental rights conferred by the different articles of Part III of the Constitution are not mutually exclusive and that therefore, a law of preventive detention which falls within Article 22 must also meet the requirements of Articles 14, 19 and 21.” 20. This Court is also in agreement with the authoritative law relied upon by learned counsel for the respondents to the effect that the object of the preventive detention of an individual is preventive in nature and not punitive. Admittedly, the preventive detention cannot be supposed to be a parallel proceeding. The object of the preventive detention is to deter a person in advance from indulging in any anti- national or anti-social activities prejudicial to the security of the State and/or interests of the society. Admittedly, where an individual liberty and the right of the entire society to a peaceful life are pitted together, 15 HCP No. 370/2024 the individual liberty has to give way to the social interest or the interest of the State, as the case may be. However, as hereinbefore mentioned, there does not appear to be a livelink between the alleged acts that led to the registration of case FIR No. 37/2021 with Police Station, Nowhatta and the need for issuance of the impugned detention, order with a gap of more than three years. An earlier detention order was revoked by the Respondents. In support of the alleged strong apprehensions/inputs against the detenu, no overt activity has been referred to by the learned detaining authority. 21. While reading the grounds of detention and the police dossier in juxtaposition, the former appear to be the replica of the later. An application of mind necessarily involves some independent corroboration by the learned detaining authority of the contents of the police dossier from its own sources. 22. The preventive detention needs to be passed with great care and caution keeping in mind that a citizens most valuable and inherent human right is being curtailed. The arrests in general and the preventive detentions in particular are an exception to the most cherished fundamental right guaranteed under Article 21 of the Constitution of India. The preventive detentions are made on the basis of subjective satisfaction of the detaining authority in relation to an apprehended conduct of the detenu by considering his past activities without being backed by an immediate complaint as in the case of the registration of the FIR and, as such, is a valuable trust in the hands of the trustees. The provisions of Clauses (1) and (2) of Article 22 of our Constitution are not applicable in the case of preventive detentions. So, the provisions of 16 HCP No. 370/2024 Clause (5) of the Article 22 of our Constitution, with just exception as mentioned in Clause (6), together with the relevant provisions of the Section 8 of PSA requiring for application of mind, subjective satisfaction, inevitability of the detention order, proper and prompt communication of the grounds of detention and the information of liberty to make a representation against the detention order, are the imperative and inevitable conditions rather mandatory requirements for passing of a detention order. 23. For the foregoing discussion, this Court is of the opinion that it may meet the ends of justice in case the impugned detention order bearing No. DMS/PSA/35/2024 dated 18th Nov. 2024, issued by the respondent No. 2, is quashed and the petitioner/detenu is ordered to be released from his preventive detention, provided he is not involved or required in any other case. 24. It is accordingly ordered. 25. Record of the WP (Crl) No. 476/2019 (Disposed of) be returned to the Registry. 26. Xerox copy of the detention record is ordered to be returned to the office of the Senior Additional Advocate General concerned. 27. Disposed of. (MOHD. YOUSUF WANI) JUDGE SRINAGAR: 09.07.2025 “Ayaz/” i) Whether the Judgment is reportable in law books/journals: ? Yes. ii) Whether judgment is reportable in Media(Print/Electronic) ? No. Vijay Kumar 2025.07.09 12:04 I attest to the accuracy and integrity of this document