Jammu & Kashmir High Court – Srinagar Bench
Muneeb Ahmad Thoker vs Union Territory Of J&K Through … on 25 March, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 171/2024
Reserved on: 06.03.2025
Pronounced on: 25.03.2025.
Muneeb Ahmad Thoker
S/o Mohd. Amin Thoker
R/o Sopat Tangpora
District Kulgam, Kashmir
...Appellant/Petitioner(s)
Through: Mr. Shuja ul Haq, Advocate.
Vs.
1. Union Territory of J&K through Principal Secretary to Govt.
Home Deptt. J&K, Civil Secretariat, Srinagar/Jammu.
2. District Magistrate, Kulgam Kashmir.
3. Superintendent Central Jail, Srinagar Kashmir.
...Respondent(s)
Through: Mr. Furqan Yaqub Sofi, GA.
CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
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
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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
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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
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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.
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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 at the time of taking the
petitioner under custody in execution of the detention
warrant came to hand over to the petitioner the order of
detention (one leaf), notice No. DMK/JC/2024-25/64-69
dated 16.04.2024 of District Magistrate, Kulgam
addressed to the petitioner informing him about passing of
detention order against him (one leave), grounds of
detention-(three leaves), copy of FIR No. 44/2019 (one
leaf), and copy of FIR No. 69/2019 (one leaf), total (seven
leaves), meaning thereby that the entire compilation of the
dossier in the form of documents therewith was not
supplied to the petitioner and only the copies of two FIRs,
unaccompanied with the rest of the material otherwise
accompanying the dossier, came to be handed over to the
petitioner for the reasons best known to the detention
warrant executing officer or Superintendent of Police,
District Kulgam, who was entrusted with an authority to
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execute the detention warrant issued the District
Magistrate, Kulgam.
14. The petitioner is said to have been explained the
contents of the documents so delivered to him by S. I.
Shuban Lal and also making him apprised that the
petitioner can make a representation to the Government
against his detention order. As against the report of
executing officer having delivered seven leaves
compilation of detention order, as referred above, the
receipt taken from the petitioner to the said effect was of
six leaves.
15. The detention order No. 14/DMK/PSA/2024 dated
16.04.2024 of the District Magistrate, Kulgam came to be
approved by the Home Department, Govt. of Jammu &
Kashmir vide Government Order No. Home/PB-V/792 of
2024 dated 23.04.2024 in terms of requirement of section
8(4) of J&K Public Safety Act, 1978.
16. At his end, the petitioner came to address a written
representation dated 29.04.2024 to the Principal
Secretary to Government, Home Department, Union
Territory of Jammu & Kashmir, which representation was
delivered in the office of Deputy Commissioner, Kulgam
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against a receipt on 30.04.2024. In his representation, the
petitioner came to submit that he though an accused and
an under-trial by reference to two FIRs mentioned in the
grounds of detention as well as in the dossier, he had been
admitted to bail by the criminal court of competent
jurisdiction and that the antecedents of the petitioner by
reference to said two FIRs was exploiting of a stale
situation to somehow subject the petitioner to preventive
detention custody without any act of commission or
omission, that too latest reported or unreported against
the petitioner.
17. The preventive detention case of the petitioner was
submitted to the Advisory Board under the Jammu &
Kashmir Public Safety Act, 1978, which vide its report No.
Home/PB-V/222/2024 dated 15.05.2024 came to opine
that there is sufficient cause for detention of the petitioner.
In addition, the Advisory Board also came to opine that
there was no merit in the representation of the petitioner
and, as such, warranted rejection.
18. Pursuant to the Advisory Board’s opinion upholding
sufficiency of cause for preventive detention of the
petitioner, the Home Department, Government of UT of
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J&K vide Government Order No. Home/PB-V/1092 of
2024 dated 24.05.2024 came to confirm the preventive
detention order No. 14/DMK/PSA/2024 dated 16.04.2024
of the District Magistrate, Kulgam and subjected the
petitioner to suffer six months of preventive detention
period at first instance from 18.04.2024 to 17.10.2024 to
continue to stay in custody in the Central Jail, Srinagar.
19. It is in this backdrop that the institution of the present
writ petition on 17th of May, 2024 came to take place.
20. In the writ petition, the petitioner has assailed his
preventive detention on the grounds as set out in
paragraph No.7.
21. The petitioner assails his preventive detention being
co-related with stale incidents related to FIRs No. 44/2019
and 69/2019.
22. The petitioner has assailed his preventive detention
saying that the exercise of power at the end of the
Superintendent of Police, Kulgam followed by District
Magistrate, Kulgam being malafide in law.
23. The purported grounds of detention as formulated by
the District Magistrate are assailed to be fake, irrelevant
and non-existent.
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24. The petitioner, in order to lend support to his plea for
quashment of preventive detention, refers to judgments of
the Hon’ble Supreme Court of India in the cases of Dr.
Ram Krishan Bhardwaj v. The State of Delhi & Ors. [1953
SCR 708], Shalini Soni & Ors. v. Union of India & Ors.
[(1980) 4 SCC 544], Icchu Devi Choraria v. Union of India
& Ors. [(1980) 4 SCC 531], Sophia Ghulam Mohammad
Bham v. State of Maharashtra & Ors. [AIR 1999 SC 3051],
Thahira Haris v. Government of Karnataka & Ors. [AIR
2009 SC 2184], Prakash Chandra Mehta v. Commissioner
& Secretary, Government of Kerala & Ors. [AIR 1986 SC
687], Kamleshwar Ishwar Prasad Patel v. Union of India &
Ors. [(1995) 2 SCC 51] and Rattan Singh v. State of
Punjab & Ors. [(1981) 4 SCC 481].
25. The petitioner has further thrown a vehement
challenge to his preventive detention by terming the
exercise of jurisdiction on the part of the respondent No.2-
District Magistrate, Kulgam based upon fractured facticity
in the sense that the fact of the petitioner being granted
bail was shared between the Superintendent of Police,
Kulgam and the respondent No.2-District Magistrate,
Kulgam in a suppressed manner without actually sharing
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the orders of bail granted in favour of the petitioner to let
the facts and circumstances leading to the grant of bail in
favour of the petitioner to be known to the respondent
No.2-District Magistrate, Kulgam.
26. Upon nearing of expiry of first six months detention
period, the preventive detention custody of the petitioner
was further extended vide Government Order No.
Home/PB-V/1962 of 2024 dated 10.10.2024 passed by
Home Department, Government of UT of J&K thereby
extending the petitioner’s custody from 18.10.2024 till
17.04.2025, which period is still in currency.
27. The counter affidavit to this writ petition came to be
filed on 4th of September, 2024.
28. In his counter affidavit, the respondent No.2-District
Magistrate, Kulgam came forward with submissions to
justify the preventive detention of the petitioner on account
of the so reckoned objectionable antecedents of the
petitioner which rendered him vulnerable to suffer loss of
his personal liberty in order to secure the security of the
State.
29. In his counter affidavit, the respondent No.2-District
Magistrate, Kulgam has nowhere adverted himself with
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respect to the fate of the representation of the petitioner
made against his preventive detention.
30. A singular fact which vitiates the preventive detention
of the petitioner to the point of rendering it illegal is the fact
that at the time of filing of counter affidavit on 4th of
September, 2024, the respondent No.2-District
Magistrate, Kulgam had come to be apprised by letter No.
Home/PB-V/222/2024 (7456587) dated 2nd of September,
2024 from the end of the Home Department, Government
of Union Territory of Jammu & Kashmir to the effect that
representation dated 29th of April, 2024 made by the
petitioner against his preventive detention is found without
merit. In fact, on an earlier occasion also, the Home
Department, Government of Union Territory of Jammu &
Kashmir vide letter No. Home/PB-V/222/2024 (7456587)
dated 24th of May, 2024 addressed to respondent No.2-
District Magistrate, Kulgam apprised him about the
rejection of the petitioner’s representation against the
preventive detention being found without any merit.
31. It is from the perusal of the detention record that the
aforesaid aspect related to rejection of the representation
of the petitioner came to be revealed.
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32. This Court cannot countenance the fact that the
respondent No.2-District Magistrate, Kulgam was not
aware of the fact of rejection of the representation of the
petitioner against his preventive detention when on two
occasions a correspondence to the said effect came to be
addressed to his office from the Home Department,
Government of Union Territory of Jammu & Kashmir.
33. In paragraph No. 7 (4), the petitioner has very
categorically registered his objection that representation
filed by him has not yielded any positive result as the same
has not been considered at the end of the respondents.
Obviously, the petitioner was right in saying that his
representation was not considered by the respondents
when he was not apprised about the fate of his said
representation. The fact that the representation of the
petitioner had been rejected by the Home Department,
Government of Union Territory of Jammu & Kashmir was
well known to the respondent No.2-District Magistrate,
Kulgam, but for reasons best known to him he failed to
pass the rejection orders/ communications from the end of
the Home Department to the petitioner leaving him with
sense of his constitutional right of representation against
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a preventive detention only a matter of lip service for no
end effect.
34. In addition, in the dossier as well as in the grounds of
detention, except for reference of the petitioner’s
antecedents in the context of aforesaid two FIRs, there
was nothing of factual nature post FIR No. 69/2019 upto
the framing of dossier against the petitioner to show as to
which alleged current activities of the petitioner were
serious enough to warrant his preventive detention.
35. Thus, just on a hallowed perception, the
Superintendent of Police, Kulgam and the respondent
No.2-District Magistrate, Kulgam ventured to use the
Jammu & Kashmir Public Safety Act, 1978 against the
petitioner to subject him to preventive detention thereby
rendering exercise of jurisdiction at their end to be malice
in law.
36. In the facts and circumstances aforesaid, the
preventive detention of the petitioner is held to be illegal.
Accordingly, the preventive detention order No.
14/DMK/PSA/2024 dated 16th of April, 2024 passed by the
respondent No.2-District Magistrate, Kulgam read with
Government Order No. Home/PB-V/1092 of 2024 dated
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24th of May, 2024 read with subsequent extension order
passed by the Home Department, Government of Union
Territory of Jammu & Kashmir with respect to the
preventive detention of the petitioner are also held to be
illegal and the same, as such, are quashed. The petitioner
is held entitled to restoration of his personal liberty
forthwith. The petitioner is, thus, directed to be released
from the confinement of concerned Jail and for the said
purpose, the Superintendent, of Police concerned jail to
carry out the compliance of the writ of habeas corpus
hereby issued by this Court and release the petitioner.
37. Disposed of.
38. Detention record be returned.
( RAHUL BHARTI )
JUDGE
Srinagar
25.03.2025
Muzammil. Q (Secy.)
Whether the Judgment/Order is reportable: Yes / No
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