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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
RAHUL BHARTI, J.
Muneeb Ahmad Thoker S/o Mohd. Amin Thoker – Appellant
Versus
Union Territory of J&K through Principal Secretary to Govt. – Respondent
HCP No. 171 of 2024
Decided on : 25-03-2025
(A) Jammu & Kashmir Public Safety Act, 1978 - Section 8 - Preventive detention - The petitioner sought release from preventive detention, which was ordered based on a dossier citing his alleged involvement with a terrorist organization and prior FIRs. The court found the detention order illegal due to lack of current factual basis and failure to consider the petitioner's representation. (Paras 5, 11, 36)
(B) Preventive Detention - The court emphasized that preventive detention must be based on current and relevant facts, and the failure to provide complete grounds of detention violates the petitioner's rights. (Paras 13, 34)
Facts of the case:
The petitioner was detained under the Jammu & Kashmir Public Safety Act based on past FIRs and alleged connections to terrorism. The detention order was executed without providing complete documentation to the petitioner. (Paras 3, 6, 12)
Findings of Court:
The court held the preventive detention order illegal due to insufficient grounds and failure to consider the petitioner's representation, thus quashing the order and restoring the petitioner's liberty. (Paras 36)
Issues: The main issues included whether the detention was justified based on stale incidents and whether the petitioner’s representation was adequately considered. (Paras 21, 33)
Ratio Decidendi: The court ruled that preventive detention must be based on current activities and relevant facts, and the failure to inform the petitioner about the rejection of his representation constituted a violation of his rights. (Paras 35, 36)
Result: The preventive detention order was quashed, and the petitioner was ordered to be released. (Paras 36)
JUDGMENT :
1. Heard learned counsel for both the sides.
2. Perused the pleadings and the record therewith. Studied the detention record produced by Mr. Furqan Yaqub Sofi, learned Government Advocate for the respondents.
3. The petitioner-Muneeb Ahmad Thoker, acting through his father namely Mohd. Amin Thoker, has petitioned this court through the medium of the present writ petition filed on 17.05.2024 whereby release of the petitioner from preventive detention custody is being solicited as the petitioner is undergoing preventive detention being lodged in the Central Jail, Srinagar.
4. The Superintendent of Police (SP), Kulgam, by virtue of communication No. Legal/PSA/2024/5097-5100 dated 30.03.2024, came to place a dossier before the District Magistrate, Kulgam with respect to the petitioner making out a case of his preventive detention in order to prevent the petitioner from acting in any manner prejudicial to the security of Union Territory of Jammu & Kashmir.
5. Preventive detention order of the petitioner was solicited under clause 1(a) of section 8 of Jammu & Kashmir Public Safety Act, 1978.
6. In the dossier, the petitioner was referred to be an over ground worker (OGW) being motivated by a killed terrorist Shakoor Ahmad Dar of Hizbul Mujahideen (HM) outfit. The petitioner’s antecedents in terms of his involvement in a criminal case registered under an FIR No.44/2019 by the Police Station Devsar and an FIR No. 69/2019 also registered by the Police Station, Devsar, were referred to serve and support a case for seeking preventive detention of the petitioner otherwise his personal liberty was to be prejudicial to the security of Union Territory of Jammu & Kashmir.
7. In addition to the aforesaid two FIRs, the petitioner’s booking for proceeding under sections 107/151 CrPC on 11.03.2024 was also referred to as being the precipitating incident against the petitioner good enough to book him for preventive detention.
8. The dossier was accompanied with a copy of application No. 16/6-10/PSD/24 dated 11.03.2024 of the Police Station Devsar, Kulgam, in terms whereof proceedings under section 107/151 CrPC were solicited to be commenced, copy of FIR No. 44/2019 dated 21.05.2019 registered for alleged commission of offences under sections 13/16/18/20/38/39 of Unlawful Activities (Prevention) Act, 1967 along-with statement of prosecution witnesses under section 161 CrPC and the documents forming part of the police report except the police report (challan), copy of FIR No. 69/2019 dated 15.09.2019 for alleged commission of offences under sections 13/16/18/19/38/39 of Unlawful Activities (Prevention) Act, 1967 accompanied with the statement of prosecution witnesses under section 161 CrPC and other accompanied documents but without copy of challan.
9. Thus, a fractured dossier came to be submitted by the Superintendent of Police, District Kulgam before the District Magistrate, Kulgam for seeking preventive detention of the petitioner.
10. Acting upon said dossier, the District Magistrate, Kulgam at his end came to draw grounds of detention for the purpose of fetching a purported subjective satisfaction that a case was made out for subjecting the petitioner to suffer preventive detention on account of his alleged activities being found prejudicial to the security of the Union Territory of Jammu & Kashmir.
11. Based upon the grounds of detention so drawn, the District Magistrate, Kulgam came to pass an order No. 14/DMK/PSA/2024 dated 16.04.2024 thereby ordering preventive detention of the petitioner in order to prevent him acting in any manner prejudicial to the security of the State and directed his detention and detainment in the Central Jail, Srinagar.
12. Said detention order No. 14/DMK/PSA/2024 dated 16.04.2024 came to be passed in exercise of power under clause 1(a) of section 8 of J&K Public Safety Act, 1978.
13. The preventive detention order came to be executed upon the petitioner on 18.04.2024 by S.I. Shuban Lal of Police Station, Kulgam, who
Preventive detention must be based on current and relevant facts; failure to consider a petitioner's representation and provide complete grounds renders the detention illegal.
The distinction between law and order and public order is crucial in cases of preventive detention, and the impact on the community must be considered. The failure to respond to the petitioner's repr....
Preventive detention must be justified by relevant and timely grounds; reliance on stale FIRs is insufficient to curtail personal liberty.
Preventive detention under the Jammu & Kashmir Public Safety Act must be justified by current threats to public order, not merely past criminal behavior.
Preventive detention must be justified and cannot be used to circumvent judicial processes, especially when the individual is already in custody.
Preventive detention under the Jammu & Kashmir Public Safety Act was found illegal due to lack of substantive grounds and procedural violations, emphasizing the protection of personal liberty.
Preventive detention under the Jammu & Kashmir Public Safety Act must be justified by current threats to public order, not merely by past criminal activities.
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