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2026 DAILYLAW 2058 (JK)

Bashir Ahmad Wani v. Union Territory of J&K

2026-02-17

Rahul Bharti

body2026
JUDGMENT : RAHUL BHARTI, J. 1. Heard learned counsel for the petitioner as well as respondents. 2. Perused the pleadings and also the documents on record. 3. The petitioner, who has come to suffer preventive detention, has approached this Court with present petition for the purpose of seeking restoration of his lost personal liberty by getting his preventive detention quashed. 4. The institution of the present writ petition came to take place on 18.04.2024 with the petitioner acting through his brother-Farooq Ahmad Wani. 5. The respondent No.2-District Magistrate, Pulwama, by virtue of an order No. 19/DMP/PSA/24 dated 04.04.2024 , ordered the preventive detention of the petitioner to be taken into custody and then confined to Central Jail Kotbhalwal, Jammu. 6. Pursuant to said detention order, the petitioner came to be taken into custody on 06.04.2024, by SI-Abdul Qayoom of DPL Awantipora, and handed over to the Assistant Superintendent, Central Jail Kotbhalwal, Jammu. 7. The detention of the petitioner is purported to be for a period of two years with effect from 06.04.2024 which period is soon coming to its expiry on its own unless and until the present writ petition comes to its adjudication in favour of the petitioner by quashing his preventive detention. 8. The Senior Superintendent of Police, (SSP), Awantipora, by virtue of his communication No. Conf/PSA/24/127-30 dated 01.04.2024, prepared and served a dossier with respect to the petitioner’s alleged activities and submitted the same to the respondent No.2-District Magistrate, Pulwama, thereby soliciting the preventive detention of the petitioner in order to prevent him from indulging in activities reckoned to be prejudicial to the security of the State warranting his preventive detention under Jammu and Kashmir Public Safety Act, 1978. 9. Acting upon the said dossier of Senior Superintendent of Police (SSP), Awantipora, the respondent No.2- District Magistrate Pulwama formulated grounds of detention thereby purportedly drawing a subjective satisfaction that the alleged reported activities of the petitioner warranting him to be detained and subjected to preventive detention custody which led to the passing of the impugned order No. 19/DMP/PSA/24 dated 04.04.2024. 10. 10. In the grounds of detention so formulated in support of impugned preventive detention order No. 19/DMP/PSA/24 dated 04.04.2024, the respondent No.2-District Magistrate, Pulwama came to refer the petitioner to be bearing relation with members of banned terrorist organization, Hizb ul Mujahedeen (HM), with aim and object of which is to disintegrate the UT of J&K from Union of India and annex it with Pakistan. The petitioner has been referred to be an overground worker of banned terrorist organization of Hizb ul Mujahedeen (HM), on which count the petitioner is said to have been repeatedly questioned by police/army on various occasions. 11. Referring to undisclosed reports, the petitioner has been referred to be supporting terrorist of Hizb ul Mujahedeen (HM), for ensuring their sustenance. The petitioner is said to be involved in recruiting youth into terrorist ranks by exploiting their religious sentiments and also being familiar with the topography of the area. 12. By reference to an incident of November 2022 the petitioner is said to have been detained under Section 107 of the Code of Criminal Procedure 1973 and proceeded against before the Executive Magistrate, Awantipora. 13. In this regard the purported proceedings under Section 107 read with Section 151 of Code of Criminal Procedure, 1973 against the petitioner having taken place on 25.10.2022 , 01.11.2022, 13.05.2023 29.03.2024 , and 07.03.2024 have been referred in order to project the alleged tendency of the petitioner to be offending the law and still not mending his conduct and indulgences. 14. The grounds of detention so formulated by the respondent No.2-District Magistrate, Pulwama followed the script as set out by 4-page dossier by the Senior Superintendent of Police (SSP), Awantipora. 15. In the writ petition, the petitioner has come forward with challenge to his detention on the grounds as set out in para 5 (a) to (m). 16. The petitioner has stressed upon the fact that he has by no stretch of reference and claim any criminal antecedent and that is the reason that neither the dossier of the Senior Superintendent of Police (SSP), Awantipora nor the grounds of detention framed by the respondent No.2-District Magistrate, Pulwama bear any whisper of reference to any FIR or criminal case registered, pending or disposed of in any criminal Court of law. The petitioner has referred that in 48 years of his life there is not even a single FIR against him and still he came to be painted as demonic person as an Over Ground Worker (OGW) of Hizb ul Mujahedeen (HM), allegedly indulging in every kind of illegal activity worth warranting his preventive detention. 17. The petitioner challenges the process of detention by stating that the purported reports upon which he came to be so projected in bad light were never ever provided to him. 18. The counter affidavit to the writ petition came to be filed on 09.08.2024 from the end of respondent No.2-District Magistrate, Pulwama Dr. Basharat Qayoom, who incidentally is also be author of the impugned preventive detention order. 19. The first and foremost flaw attending the counter affidavit so filed is that its attestation has been made by Executive Magistrate 1st Class, Pulwama without bearing any date so much so the verification also is undated and that is reflective of the casualness at the end of none else than the District Magistrate, Pulwama, Dr. Basharat Qayoom for whom submission of a counter affidavit in a constitutional court that too in a writ of habeas corpus seems to be a matter of just signing without reading the entire length and breadth of the affidavit otherwise an essential fact of date on which he is coming forward to subscribe his signature to the counter affidavit would not have even missed his ordinary attention. Even, the Executive Magistrate 1st Class, Pulwama, without disclosure of his name as an identity lent the attestation to the affidavit more as a subordinate to the District Magistrate, Pulwama rather than an officer having power of attestation vested in him by law which requires an affiant/deponent appearing before him and being subscribed affirmation in the affidavit with due mention of date on which the affirmation is being made before him. The counter affidavit so filed, thus, self nullifies itself. 20. The casualness on the part of the respondent No.2-District Magistrate, Pulwama is not restricted only to the matter of attestation of counter affidavit but precedes that and that is in the Grounds of Detention where the preventive proceedings of 07.03.2024 highlighted by the respondent No.2-District Magistrate, Pulwama nowhere finds any whisper of mention in the dossier served by the Senior Superintendent of Police (SSP), Awantipora. 21. 21. Thus, wherefrom a misplaced mention of proceedings under Section 107 Cr.P.C read with 151 Cr.P.C on 07.03.2024 came to be spared and picked up by the respondent No.2-District Magistrate, Pulwama is only a matter of puzzle not for this Court to figure out but burden it upon the respondent No.2- District Magistrate, Pulwama to bear the fault at the cost of quashment of his detention order making decision. 22. Thus, from the cumulative reading of facts and circumstances of this case, this Court has no iota of doubt that the preventive detention of the petitioner right from inception was misconceived and was ordered more for the purpose of data making that during the tenure of a particular incumbent as a District Magistrate, Pulwama or as Senior Superintendent of Police (SSP), Awantipora, given number of preventive detention cases were proposed and ordered. 23. The petitioner has surely become a victim of illegal exercise of jurisdiction or rather misuse of jurisdiction on the part of the District Police as well as District Magistracy at the cost of loss of his fundamental right to personal liberty otherwise guaranteed under Article 21 of the Constitution of India 24. Since the petitioner has not made any prayer for damages/compensation for suffering loss of his fundamental right to personal liberty on account of illegal detention slapped upon and suffered by him as such, this Court is not in a position to penalize the respondents otherwise it perhaps is a fit case where damages would have been granted in favour of the petitioner if the same would have been prayed for. 25. The preventive detention order No. 19/DMP/PSA/24 dated 04.04.2024 read with approval/confirmation/extension order/s passed by the Home Department, Government of Union Territory of Jammu and Kashmir are hereby quashed and the petitioner is held entitled to be restored to his personal liberty forthwith from release from the concerned Jail and for that purpose the Superintendent concerned Jail to release the petitioner upon receipt of certified copy of this judgment. 26. Disposed of.