Tawseef Ahmad Sofi vs Union Territory Of Jammu And Kashmir … on 4 April, 2025

Jammu & Kashmir High Court – Srinagar Bench

Tawseef Ahmad Sofi vs Union Territory Of Jammu And Kashmir … on 4 April, 2025

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR
                                                   Reserved on: 27.03.2025
                                                 Pronounced on: 04.04.2025

                              HCP 45/2024, CM(460/2025)

Tawseef Ahmad Sofi, Aged 27 Years                      ...Petitioner(s)/Appellant(s)
S/o Manzoor Ahmad Sofi
Through Father Manzoor Ahmad Sofi
R/o Azadpora Anchidora, Anantnag

Through:      Mr. Saqib Amin Parray, Advocate
                                            Vs
1. Union Territory of Jammu and Kashmir through                   ...Respondent(s)
   Principal Secretary to Government,
   Home Department, Civil Secretariat.
2. District Magistrate, Anantnag.
3. Superintendent Central Jail Jammu Kotbalwal.

Through:      Mr. Ilyas Laway, GA
CORAM:
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                                 JUDGMENT

1. In the instant petition, the detenue through his father has challenged and
sought quashment of the detention order No. 03/DMA/PSA/DET/2024
dated 11.01.2024 (for short “impugned order”) issued by respondent No.
2 by virtue of which the detenue has been detained under the provisions
of Public Safety Act and lodged in Central Jail, Kotbhalwal, Jammu.

BRIEF FACTS

2. The detenue Tawseef Ahmad Sofi is stated to have been arrested on
11.01.2024, in connection with his involvement in subversive activities in
the year 2016. The detenue has been detained for being an Over Ground
Worker (OGW) of banned terrorist organization Lashkar-i-Toiba outfit.
The detenue is also stated to have been associated with an OGW Bariq
Arsalan, a resident of Nai Basti, Anantnag.

2

3. The alleged activities of the detenue have been found to be a threat to the
security of the State/Union Territory of Jammu & Kashmir, therefore, the
Respondent No. 2 has exercised the power of preventive detention
against the detenue by virtue of the impugned order.

4. The impugned order is questioned by the petitioner primarily on the
grounds that the detenue is a peace loving citizen and is living a normal
life without being involved in any of the activities that may disturb the
peace and tranquility of the State/Union Territory of Jammu & Kashmir;
that the detenue is alleged to be involved in activities allegedly carried
out by him in the year 2016; the FIR mentioned in the grounds of
detention being FIR No. 219/2022 registered by Police Station, Anantnag
in terms of Sections 120B, 130 IPC, 18, 39 UA(P) Act is not reflecting
the name of the detenue anywhere, therefore, the impugned order is an
outcome of non-application of mind on the part of the detaining
authority-Respondent No. 2; the detenue has neither been provided with
the entire material, on the basis of which his detention has been ordered,
to enable him to move an effective representation against his detention
nor has the material been read over to the detenue in the language he
understands.

5. Upon notice, the respondents appeared and filed counter affidavit
resisting the claim of the petitioner. The respondents in their counter
affidavit specifically mentioned that the respondents while issuing the
impugned order have followed the procedural safeguards as envisaged in
law in letter and spirit and the impugned order has been issued after
proper application of mind. The respondents have further mentioned that
the detenue did file a representation against his detention and the contents
of the warrant were explained and read over to him in the language he
understands viz; Urdu/Kashmiri.

6. I have heard learned counsel for the parties and perused the material
made available including the detention records produced by learned
counsel for the respondents.

7. The learned counsel for the petitioner submitted that the allegations
against the detenue are vague and the material forming basis for the
detention has not been provided to the detenue to enable him to move an

HCP 45/2024
3

effective representation against his detention. The learned counsel further
submitted that the respondents do not justify as to why and how the
substantive law was not sufficient to deter the detenue from indulging in
the subversive activities. The learned counsel further submitted that the
impugned order is issued in the year 2024 when as a matter of fact the
alleged activities attributed to the detenue are of the year 2016 or even for
that matter of the year 2022. The learned counsel submitted that the
detenue cannot be put under preventive detention on the basis of stale
incidence. Learned counsel in support of his submissions referred to and
relied upon the judgments delivered in cases titled “Rekha vs State of
Tamil Nadu and Anr” reported as 2011 SCC (4) 260 and “Sama Aruna
vs State of Telangana and Anr” reported as 2018 12 SCC 150.

8. On the other hand, learned counsel for the respondents while defending
the action of the respondents, has submitted that it is not the number of
acts that may form a ground for the detention of the detenue but the
sufficiency of the material and the effect of an act and its outreach and
impact upon the society that the detaining authority should take into
account in ordering the preventive detention of an individual.

9. Considered the submissions made.

10. The material placed on record including the detention order and the
grounds of detention prepared by the police concerned against the
detenue reflects that the detenue has been involved in some subversive
activities in the year 2016. The other purported allegation against the
detenue is his involvement in case FIR No. 219/2022 registered by Police
Station, Anantnag in terms of Sections 120B, 130 IPC, 18, 39 UA(P) Act.
The impugned order has, admittedly, been issued in the year 2024 i.e.,
approximately 08 years after the alleged involvement of the detenue in
the year 2016 and 02 years later the date of the registration of FIR No.
219/2022. Learned counsel for the petitioner, thus, is justified in
submitting that the detenue is not alleged to have committed any fresh
activity commencing with or nearer to the date of impugned order. In that
way, there is no nexus between the alleged activity of the detenue and the
date of preventive detention as the live link and the proximity between
the two is absolutely missing.

HCP 45/2024
4

11. Insofar as the submission of the learned counsel for the petitioner in
respect of the filing of the representation and making him understand the
material in the language he understands, are concerned, the same have
been sufficiently explained by the respondents in the counter affidavit,
and in terms of the material placed on record which demonstrates that the
father of the detenue i.e., the petitioner had moved a representation
against the detention of the detenue which has been considered as well.
The court is also satisfied that the respondents have read over and
explained the detention order and other relevant material to the detenue in
the language he understands, there being a receipt placed on record to
that extent.

12. Having said that the court is also convinced that the detenue has been
detained for his involvement in the alleged activities carried out in the
year 2016 and the impugned order has been issued 08 years later in time
of such alleged activities. The impugned order, in the circumstances,
cannot withstand the test of law as the Apex Court has strongly laid down
that the detention orders must not be based on stale incidences.

13. The Apex Court in case titled ‘Ameena Begum Vs. State of Telangana
and Others (2023 9 SCC 587)’ has held that the order of detention must
not be based upon stale events. It would be profitable to reproduce the
paragraph-17 of the said judgment herein as:

“In a different context, we may take note of the decision
in Sama Aruna vs. State of Telangana11 where, S.A. Bobde, J.
(as the Chief Justice then was) while construing the provisions
of the Act, held:

“16. There is little doubt that the conduct or activities
of the detenu in the past must be taken into account for
coming to the conclusion that he is going to engage in
or make preparations for engaging in such activities,
for many such persons follow a pattern of criminal
activities. But the question is how far back? There is no
doubt that only activities so far back can be considered
as furnish a cause for preventive detention in the
present. That is, only those activities so far back in the
past which lead to the conclusion that he is likely to
engage in or prepare to engage in such activities in the
immediate future can be taken into account.” In
holding that the order of detention therein was
grounded on stale grounds, the Court held that

HCP 45/2024
5

“The detention order must be based on a reasonable prognosis
of the future behavior of a person based on his past conduct in
light of the surrounding circumstances. The live and proximate
link that must exist between the past conduct of a person and
the imperative need to detain him must be taken to have been
snapped in this case. A detention order which is founded on
stale incidents must be regarded as an order of punishment for
a crime, passed without a trial, though purporting to be an
order of preventive detention. The essential concept of
preventive detention is that the detention of a person is not to
punish him for something he has done but to prevent him from
doing it.”

14. The Apex Court in another case titled ‘Khawaja Bilal Ahmed Vs. State
of Telangana (2020) 13 SCC 632, has held that the Detaining Authority
has not to delve into the history of cases involving the detenue but
prevent him doing something that is against the public order or the
security of the state and in doing so the Detaining Authority has to arrive
at the subjective satisfaction based on the activities, the detenue is
indulging in and may continue to do in future. It would be profitable to
reproduce Para- 23 of the said judgment herein as under:

“23. If the pending cases were not considered for passing the order
of detention, it defies logic as to why they were referred to in the
first place in the order of detention. The purpose of the Telangana
Offenders Act 1986 is to prevent any person from acting in a
manner prejudicial to the maintenance of public order. For this
purpose, Section 3 prescribes that the detaining authority must be
satisfied that the person to be detained is likely to indulge in illegal
activities in the future and act in a manner prejudicial to the
maintenance of public order. The satisfaction to be arrived at by
the detaining authority must not be based on irrelevant or invalid
grounds. It must be arrived at on the basis of relevant material;
material which is not stale and has a live link with the satisfaction
of the detaining authority. The order of detention may refer to the
previous criminal antecedents only if they have a direct nexus or
link with the immediate need to detain an individual. If the previous
criminal activities of the appellant could indicate his tendency or
inclination to act in a manner prejudicial to the maintenance of
public order, then it may have a bearing on the subjective
satisfaction of the detaining authority. However, in the absence of a
clear indication of a causal connection, a mere reference to the
pending criminal cases cannot account for the requirements
of Section 3. It is not open to the detaining authority to simply
refer to stale incidents and hold them as the basis of an order of
detention. Such stale material will have no bearing on the
probability of the detenu engaging in prejudicial activities in the
future” (Emphasis supplied)

15. The FIR, mention whereof is made in the grounds of detention bearing
FIR No. 219/2022 registered by Police Station, Anantnag for the
commission of offences under Sections 120B, 130 IPC, 18, 39 UA(P)
Act, on the showing of the respondents itself is registered against the

HCP 45/2024
6

inmates lodged in different jails not connecting the detenue directly or
indirectly in any way. This again reflects the non-application of mind on
part of the detaining authority.

16. In view of what has been said hereinbefore, the instant habeas corpus
petition is allowed. The impugned order No. 03/DMA/PSA/DET/2024
dated 11.01.2024 whereby the detenue namely Tawseef Ahmad Sofi S/o
Manzoor Ahmad Sofi R/o Azadpora, Anchidora, Anantnag has been
detained, is quashed. The detenue is directed to be released from
preventive detention forthwith, if not required in any other case.

17. Disposed of.

18. Registry to return the detention records to learned Government Counsel
against receipt.

(MOKSHA KHAJURIA KAZMI)
JUDGE

SRINAGAR
04.04.2025
AAMIR (PS)

Whether approved for reporting No

Amir Rashid Sofi
I attest to the accuracy and
authenticity of this document
04.04.2025 16:49
HCP 45/2024