Jammu & Kashmir High Court – Srinagar Bench
Abdul Ahad Alias Ahad Molvi vs Ut Of J&K & Others on 2 April, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
HCP No.168/2024
Reserved on: 27.02.2025
Pronounced on:-02.04.2025
ABDUL AHAD ALIAS AHAD MOLVI ...PETITIONER(S)
Through: - Mr. Usman Gani, Advocate
vs.
UT OF J&K & OTHERS ...RESPONDENT(S)
Through: - Mr. Syed Musaib Dy. AG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged detention order bearing
No.12/DMB/PSA/2024 dated 04.04.2024, issued by District
Magistrate, Baramulla, in exercise of powers conferred by
clause (a) of Section 8 of the J&K Public Safety Act, 1978,
whereby the detenue, namely, Abdul Ahad Dar @ Ahad Molvi
has been placed under preventive detention so as to prevent him
from indulging in the activities which are prejudicial to the
security of the State.
2) It has been contended by the petitioner that the impugned
detention order has been passed without application of mind as the
grounds of detention are vague, non-existent and stale on which no
prudent man can make a representation against such allegations. It
has been further contended that the procedural safeguards have not
been complied with in the instant case, inasmuch as whole of the
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material has not been provided to the petitioner. It has been further
urged that there has been non-application of mind on the part of
detaining authority while passing the impugned detention order as
the detenue was already admitted to bail in some of the FIRs
mentioned in the grounds of detention but the said fact is not
mentioned in the grounds of detention.
3) The respondents, in their counter affidavit, have contended
that none of the legal rights of the petitioner have been infringed or
violated. It has been further contended that the activities of the
detenue are highly prejudicial to the security of the State. It is
pleaded that the detention order and grounds of detention along with
the material relied upon by the detaining authority were handed over
to the detenue and the same were read over and explained to him. It
has been further contended that the detenue was informed that he can
make a representation to the government as well as to the detaining
authority against his detention. It is also averred in the reply affidavit
that all statutory requirements and constitutional guarantees have
been fulfilled and complied with by the detaining authority and that
the order has been issued validly and legally. The respondents have
produced the detention record to lend support to the stand taken in
the counter affidavit.
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4) Learned counsel for the petitioner, while seeking quashment
of the impugned order, projected various grounds but his main thrust
during the course of arguments, was on the following grounds:
(i) that the impugned order of detention is based upon stale
incidents having no proximate link the activities alleged
to be prejudicial to the security of the State.
(ii) That whole of the material that formed basis of the
grounds of detention has not been supplied to the
petitioner, thereby violating his right of making an
effective representation against his detention.
5) So far as the first ground of challenge is concerned, a perusal
of the grounds of detention would reveal that reference has been
made to incidents regarding which eight different FIRs have been
registered. These FIRs include FIR No. 26/2013 of Police Station,
Pattan, FIR No. 45/2013 of Police Station, Pattan, FIR No. 144/2016
of Police Station, Pattan, FIR No. 210/016 of Police Station, Pattan,
FIR No. 260/2016 of Police Station, Pattan, FIR No. 275/2016 of
Police Station, Pattan, FIR No. 83/2017 of Police Station, Pattan and
FIR No. 2009/2018 of Police Station, Pattan. All these incidents
pertain to a period which is about six years prior to the passing of the
impugned detention order. In the grounds of detention, there is no
mention of any fresh activity pertaining to the petitioner. It has been
stated in the grounds of detention that the petitioner has been
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assigned a role in carrying out anti national activity to disturb the
smooth and peaceful conduct of the General Lok Sabha Elections
2024 without there being any activity attributed to the petitioner after
the registration of last FIR against him in the year 2018. Thus, it is
clear that the order of detention passed against the petitioner is based
upon past and stale incidents.
6) So far as the next ground of challenge is concerned, a perusal
of the receipt of grounds of detention, which is available in the
detention record reveals that the petitioner has received grounds of
detention consisting of two leaves and other documents (14) leaves.
What were these (14) leaves have not been mentioned in the receipt
of grounds of detention..
7) If we have a look at the grounds of detention, it bears
reference to as many as eight FIRs viz. FIR Nos.26/2013, 45/2013,
144/2016, 210/2016, 260/2016, 275/2016, 83/2017 and 209/2018
registered with P/S Pattan. It was incumbent upon the respondents to
furnish not only copies of the FIRs but also the statements of
witnesses recorded during investigation of the said FIRs and other
material on the basis of which petitioner’s involvement therein is
shown, which has not been done. All this material would run in
dozens of pages and it is impossible that all this material would be
covered in only fourteen leaves. Thus, contention of the petitioner
that whole of the material relied upon by the detaining authority,
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while framing the grounds of detention, has not been supplied to
him, appears to be well-founded. Obviously, the petitioner has been
hampered by non-supply of these vital documents in making an
effective representation before the Advisory Board, as a result
whereof his case has been considered by the Advisory Board in the
absence of his representation, as is clear from the detention record.
Thus, vital safeguards against arbitrary use of law of preventive
detention have been observed in breach by the respondents in this
case rendering the impugned order of detention unsustainable in law.
8) It needs no emphasis that the detenue cannot be expected to
make an effective and purposeful representation which is his
constitutional right guaranteed under Article 22(5) of the
Constitution of India, unless and until the material, on which the
detention is based, is supplied to the detenue. The failure on the part
of detaining authority to supply the material renders the detention
order illegal and unsustainable in law. While holding so, I am
fortified by the judgments rendered in Sophia Gulam Mohd. Bham
v. State of Maharashtra & ors (AIR 1999 SC 3051), Thahira
Haris etc. etc. Vs. Government of Karnataka & Ors (AIR 2009
SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar
Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam
Vs. State of Gujarat and others“, (1982) 3 SCC 440.
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9) For the afore-stated reasons, the petition is allowed and the
impugned detention order is quashed. The respondents are directed
to release the petitioner from the preventive custody forthwith,
provided he is not required in connection with any other case.
10) The record be returned to learned counsel for the respondents.
(Sanjay Dhar)
Judge
Srinagar
02.04.2025
“BhatAltaf-Secy”
Whether the order is reportable: Yes/No KARAM CHAND 2025.04.02 17:11 I attest to the accuracy and integrity of this document
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