Jammu & Kashmir High Court – Srinagar Bench
Rouf Ahmad Sheikh Aged 26 Years vs Ut Of Jammu & Kashmir Through Principal … on 5 May, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on : 03.04.2025.
Pronounced on : 05.05.2025.
HCP No. 125/2024
Rouf Ahmad Sheikh aged 26 years,
S/o Ghulam Nabi Sheikh,
R/o Rampora, Tehsil Qaimoh and District Kulgam, Kashmir
through his wife Rafia Maqbool aged 30 years,
D/o Mohd. Maqbool Sheikh,
R/o Rampora, Tehsil Qaimoh and District Kulgam, Kashmir
.....Petitioner
Through: Mr. Asif Maqbool, Advocate
Vs
1. UT of Jammu & Kashmir through Principal Secretary to Government,
Home Department, J&K, Civil Secretariat, Srinagar, Kashmir.
2. District Magistrate, Kulgam Kashmir.
3. Superintendent of Police Central Jail, Srinagar, Kashmir.
..... Respondents
Through: Mr. Zahid Qais Noor, GA
CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
01. Heard learned counsel for the petitioner.
02. Perused the writ pleadings and the documents
therewith. Also perused the detention record produced from the
end of the respondents.
03. The petitioner – Rouf Ahmad Sheikh, a 26 years aged
person, who acting through his wife – Rafia Maqbool came
forward with institution of the present writ petition on 29.04.2024
thereby seeking a writ of habeas corpus to set aside the
preventive detention imposed upon him by virtue of an order
2 HCP No. 125/2024
passed by the respondent No. 2 – District Magistrate, Kulgam
acting in jurisdiction under section 8 of the Jammu & Kashmir
Public Safety Act, 1978.
04. The impugned preventive detention order is
No.08/DMK/PSA/2024 dated 29.03.2024 issued by the
respondent No. 2 – District Magistrate, Kulgam thereby directing
the preventive detention of the petitioner and his detainment in
Central Jail, Srinagar in order to prevent the petitioner from
acting and indulging in activities prejudicial to the security of the
State.
05. Pursuant to the preventive detention order so passed,
the petitioner came to be detained on 30.03.2024 and ever since
then the petitioner is serving his preventive detention custody
which has run its period of one year and is now in the second
year of custody.
06. A case for seeking preventive detention of the petitioner
was generated by the Superintendent of Police (SP), Kulgam who
vide his communication No.Legal/PSA/2024/4950-53 dated
26.03.2024 served a dossier against the petitioner to the
respondent No. 2 – District Magistrate, Kulgam thereby reporting
the alleged state of activities of the petitioner reckoned prejudicial
to the security of the State.
3 HCP No. 125/2024
07. In the dossier, the petitioner came to be presented in
two aspects in terms of his credentials & character on one hand
and other in terms of his activities & antecedents.
08. One aspect from the point of view of his involvement in
reported criminal activities and his antecedents in the form of FIR
No. 183/2016 u/s 13 of Unlawful Activities (Prevention) Act,
1967 read with 7/25 of Arms Act, 1959 registered by the Police
Station Kulgam; FIR No. 196/2016 u/s 13 of Unlawful Activities
(Prevention) Act, 1967 by the Police Kulgam & FIR No. 313/2017
u/s 302, 307 Ranbir Penal Code read with 7/27 Arms Act, 1959
and 13/18/20/38/39 of Unlawful Activities (Prevention) Act,
1967 by the Police Station Qazigund, Srinagar.
09. In other aspect, the petitioner’s credentials and
character came to be referred and highlighted as being one
brother of Shabir Ahmad Sheikh who joined terrorist outfit (Hizb-
ul-Mujahideen) in the year 1999 crossing over to Pakistan to
achieve illegal arms training from Pakistan and till date having
not returned back. The petitioner’s brother-in-law Mohd. Abass
Sheikh is said to be an active militant of HM banned terrorist
outfit. The petitioner is alleged to be drawn to and driven by ideal
of his brother and brother-in-law so as to work as an over ground
worker (OGW). The petitioner is said to have reportedly developed
contacts with one Basit Ahmad Dar, a proclaimed terrorist of
LeT/ TRF outfit.
4 HCP No. 125/2024
10. For his past objectionable activities, the petitioner is
said to have been detained in the year 2018 under the Jammu &
Kashmir Public Safety Act, 1978 but that detention did not prove
to be reformative for the petitioner to refrain from indulging and
continuing with the alleged objectionable activities thereby
becoming pain in the neck of the security apparatus and system
of UT of Jammu & Kashmir so as to reckon him prejudicial to the
security of the State by his personal liberty available to him.
11. Acting upon the said dossier, the respondent No. 2 –
District Magistrate, Kulgam came to generate and formulate the
grounds of detention so as to entertain a subjective satisfaction to
hold that the petitioner is a case whose personal liberty needs to
be curtailed in order to prevent him from acting and indulging in
activities prejudicial to the security of the State.
12. Thus, the respondent No. 2 – District Magistrate,
Kulgam was left to pass the impugned Order
No.08/DMK/PSA/2024 dated 29.03.2024 which brought the
petitioner in preventive detention custody with effect from
30.03.2024.
13. Vide a communication No. DMK/JC/2023-24/505-10
dated 29.03.2024 issued by the respondent No. 2 – District
Magistrate, Kulgam addressed to the petitioner, the fact about
passing of the preventive detention order against him was meant
5 HCP No. 125/2024
to be conveyed to the petitioner with a reminder to him being
entitled to make a representation against his preventive detention
meant to be carried out upon him.
14. Upon his being taken into preventive detention custody
on 30.03.2024, the detention order Executing Officer – ASI Noor
Mohammad, No. 110/IRP, 16th Battalion, ARP-873124 handed
over six (6) leaves compilation of detention order comprised of
detention warrant (one leaf), notice of detention (one leaf) and
grounds of detention (four leaves), all being said to have been
read over to the petitioner to enable him to understand the cause
and basis of his preventive detention and also to be handed over
with the said documents. The petitioner is said to have been
expressly informed that he has a right of filing a representation to
the Govt. against his preventive detention order if he so desires.
15. After the execution of the detention warrant upon the
petitioner resulting in his custody in the Central Jail, Srinagar,
the detention order came to be approved by the Govt. of UT of
Jammu & Kashmir, through its Home Department, vide a Govt.
Order No. Home/PB-V/634 of 2024 dated 04.04.2024 by
forwarding the case to the Advisory Board for its opinion.
16. The Advisory Board, at its end, came forward with its
opinion on file No. Home/PB-V/135/2024 dated 18.04.2024
thereby holding that sufficient cause was available for subjecting
6 HCP No. 125/2024
the petitioner to preventive detention custody. The Advisory Board
came to observe that no representation against his preventive
detention has been submitted by the petitioner for its
consideration.
17. The Advisory Board’s opinion so tendered led to the
issuance of Govt. Order No. Home/PB-V/880 of 2024 dated
30.04.2024 thereby confirming the detention of the petitioner and
fixing the first spell of detention period with effect from
30.03.2024 to 29.09.2024 and the place of lodgment in the
Central Jail, Srinagar.
18. The petitioner’s first detention period is said to have
earned second extension with effect from 30.09.2024 to
29.03.2025 in terms of Govt. Order No. Home/PB-V/1839 of
2024 dated 25.09.2024 and which is now supposed to be in the
third extension meaning thereby the petitioner’s detention is
bound to last for full two years lasting upto 29.03.2026.
19. The petitioner has come to challenge his preventive
detention in terms of the grounds set out in para 9(a) to (m). The
petitioner has assailed his prevention detention order on the
ground that it is a repeat and extension of his first preventive
detention effected vide detention Order No. 07/DMK/PSA/2018
dated 26.07.2018 which was questioned by him in a writ petition
HCP No. 245/2018 which resulted in quashment of his preventive
7 HCP No. 125/2024
detention order by virtue of a judgment dated 28.11.2018. A copy
of the said judgment dated 28.11.2018 is annexed with the writ
petition as Annexure-II.
20. The petitioner further challenges the preventive
detention on the ground that by using the stale material against
him, second time preventive detention order has been carried out
by repeat reference of FIR No. 196/2016 of Police Station Kulgam
& FIR No.313/2017 of Police Station Qazigund, with mention of
FIR No.183/2016 which otherwise was missing out in relation to
the first preventive detention order of the petitioner.
21. The petitioner, thus, assails his present preventive
detention custody being an outcome of sheer plastic like
application of mind on the part of the respondent No. 2 – District
Magistrate, Kulgam. The petitioner alleges that last adverse
activities alleged and attributed to the petitioner is of 14.11.2017
and thereafter there is no inter-connecting factual material which
could have enabled the second time preventive detention of the
petitioner.
22. The petitioner further assails that his right to
representation against his preventive detention has been
seriously prejudiced as he was not supplied with the material
which was relied upon in passing the preventive detention order
against the petitioner. The fact of grant of bail in favour of the
8 HCP No. 125/2024
petitioner by reference to the FIRs mentioned in the grounds of
detention was overlooked with an impunity in processing a case
against the petitioner for his second time preventive detention.
23. The petitioner has denied his connection as an over
ground worker (OGW) with banned organization like
HM/Let/TRF. The petitioner submits that he is a father of three
minor children and, as such, is a lone bread earner of the family
and was meant to provide for his family and by that sense of
responsibility could not conceive of indulging in activities being
prejudicial to the security of the State.
24. In the counter affidavit filed on 13.08.2024, the
respondents have countered the challenge posed by the petitioner
to his preventive detention custody. The averments in the counter
affidavit proceeds bearing the text and texture of the grounds of
detention as well as the dossier.
25. The respondents in their counter affidavit have referred
to the cases of Gautam Jain Vs Union of India and another, AIR
2017 SC 230 & Senthamilselvi Vs State of Tamil Nadu and
another, (2006)5 SCC 676 besides drawing reliance from
Haradhan Saha Vs State of West Bengal, (1975)3 SCC 198 &
Union of India and another Vs Dimple Happy Dhakad, AIR 2019
SC 3428 and, therefore, seek dismissal of the writ petition.
9 HCP No. 125/2024
26. Upon hearing learned counsel for both sides, this Court
is left to examine the legality of the preventive detention of the
petitioner by posing a question as to whether post judgment
dated 28.11.2018 in writ petition HCP No.245/2018 which had
resulted in quashment of first preventive detention custody of the
petitioner otherwise effected vide the Order No.07/DMK/PSA/
2018 dated 26.07.2018 under the Jammu & Kashmir Public
Safety Act, 1978 then reckoning the petitioner’s reported activities
to be prejudicial to the security of the State, any fresh feed of
facts came to arrest the concern of district law and enforcement
authority/agency to sponsor a case for preventive detention of the
petitioner by reckoning him in terms of his alleged activities to be
prejudicial to the security of the State.
27. There is no escape from the fact that the dossier
submitted by the Superintendent of Police (SP), Kulgam, vide his
letter No. No.Legal/PSA/2024/4950-53 dated 26.03.2024 on the
basis of which the grounds of detention came to be based upon,
borrows mention of two FIRs i.e. FIR No. 196/2016 and FIR No.
313/2017 of the Police Stations Kulgam and Qazi Gund
respectively. These two FIRs formed the basis for first time
preventive detention of the petitioner also which got quashed.
Therefore, the petitioner’s alleged indulgence and involvement in
the cognizable activities related to said two FIRs were to be and
are to be taken out from the purview of forming a reference and
10 HCP No. 125/2024
basis to effect his second time preventive detention custody and
that meant and leaves only FIR No. 183/2016 also registered by
the Police Station Kulgam, as mentioned in the grounds of
detention to be a purported basis on the basis of which the
Superintendent of Police (SP), Kulgam could be heard to say that
the preventive detention of the petitioner second time is based
upon the petitioner’s involvement in said FIR No. 183/2016. This
Court is afraid that if this plea cum excuse can be heard to be
sustained from the respondents’ end.
28. FIR No. 183/2016 is prior in time of its registration to
FIR No. 196/2016 and FIR No. 313/2017 both of which came to
be mentioned in the first time preventive detention case of the
petitioner. What led to the omission of mention of FIR No.
183/2016 in the first time preventive detention exercise relatable
to the petitioner was supposed to have been then self explained
by the Superintendent of Police (SP), Kulgam for the facility of
proper and fair application of mind of the respondent No.2 –
District Magistrate, Kulgam but since there is no such whisper of
explanation, as such the respondent No. 2 – District Magistrate,
Kulgam also had no occasion to apply his mind as to why FIR No.
183/2016 was missed out first time to be mentioned against the
petitioner for soliciting his first time preventive detention custody.
29. Therefore, all the three FIRs are to be taken out of the
purview from being counted as the supplier of purported basis for
11 HCP No. 125/2024
the respondent No. 2 – District Magistrate, Kulgam to pass the
detention order by drawing a subjective satisfaction there from.
30. The Court is, thus, left to consider by reading of the
dossier as well as the grounds of detention as to what are the left
over reported intervening acts of omission and commission on the
basis of which the petitioner was reckoned to be a case for
preventive detention custody under the Jammu & Kashmir Public
Safety Act, 1978.
31. In this regard, this Court finds that neither in the
dossier nor in the grounds of detention it has been stated as a
matter of fact that the petitioner, as being an under trial in
relation to the criminal cases related to the three FIRs, has
indulged in breach of terms and conditions of bail granted in each
of three criminal cases in his favour by the competent criminal
court of law and that by indulging in such breaches of bail
condition/s, the petitioner ventured in his objectionable activities
posing an ongoing threat to the security of the State fed by his
alleged ideology.
32. Upon examination of the detention record, this Court
has come across with a fact that Station House Officer (SHO)
Police Station Qaimoh, who had actually generated the case for
seeking the preventive detention of the petitioner, in his report to
the Superintendent of Police (SP), district Kulgam had referred to
12 HCP No. 125/2024
an aspect that the petitioner had come to be detained on
20.02.2024 in terms of proceedings initiated under section 107
read with section 151 of the Code of Criminal Procedure, 1973 in
which connection by virtue of an order of the Executive
Magistrate Ist Class, before whom the case was submitted, the
petitioner came to be released on 21.02.2024. In fact, on two later
occasions also i.e. on 26.02.2024 & 27.02.2024 the petitioner is
said to have been detained by recourse to section 107 read with
section 151 of the Code of Criminal Procedure, 1973 and on both
occasions the petitioner had come to be granted bail as averred in
his report by SHO Police Station Qiamoh.
33. For the reasons best known to the Superintendent of
Police (SP), Kulgam, he came to omit making reference in his
dossier to said preventive proceedings effected on three occasions
against the petitioner in terms of section 107 of the Code of
Criminal Procedure, 1973.
34. Section 107 figures under chapter VIII of the Code of
Criminal Procedure, 1973 which provides for provision and
proceedings for security for keeping the peace in other cases. For
the facility of reference, section 107 is reproduced herein under:-
107. Security for keeping the peace in other cases
(1) When an Executive Magistrate receives information
that any person is likely to commit a breach of the
peace or disturb the public tranquility or to do any
wrongful act that may probably occasion a breach of
13 HCP No. 125/2024the peace or disturb the public tranquility and is of
opinion that there is sufficient ground for
proceeding, he may, in the manner hereinafter
provided, require such person to show cause why he
should not be ordered to execute a bond [with or
without sureties] for keeping the place for such
period, not exceeding one year, as the Magistrate
thinks fit.
(2) Proceedings under this section may be taken before
any Executive Magistrate when either the place
where the breach of the peace or disturbance is
apprehended is within his local jurisdiction or there
is within such jurisdiction a person who is likely to
commit a breach of the peace or disturb the public
tranquility or to do any wrongful act as aforesaid
beyond such jurisdiction.
35. Section 151 of the Code of Criminal Procedure, 1973
figures in chapter XI under heading “Preventive Action of the
Police” which enables a police officer knowing of a design to
commit any cognizable offence may arrest, without orders from a
Magistrate and without a warrant, the person so designing the
commission of a cognizable offence. Section 151 of the Code of
Criminal Procedure, 1973 is also reproduced herein under:-
151. Arrest to prevent the commission of cognizable
offence.
(1) A police officer, knowing of a design to commit any
cognizable offence may arrest, without orders from
the Magistrate and without a warrant, the person so
designing, if it appears to such officer that the
commission of the offence cannot be otherwise
prevented.
14 HCP No. 125/2024
(2) No person arrested under sub-section (1) shall be
detained in custody for a period exceeding twenty-
four hours from the time of his arrest unless his
further detention is required or authorized under
any other provisions of this Code or of any other law
for the time being in force.
36. Since the Superintendent of Police (SP), Kulgam himself
took away a possible live-link basis related to the preventive
detention custody case of the petitioner from being mentioned in
his dossier as against the reference so made by Station House
Officer (SHO) Police Station Qaimoh with respect to booking the
petitioner on three occassions for proceedings under section 107
read with section 151 of the Code of Criminal Procedure, 1973,
therefore, from the very inception the dossier submitted by the
Superintendent of Police (SP), Kulgam vide communication No.
Legal/PSA/2024/4950-53 dated 26.03.2024 was nothing but a
ritual like repeat of diluted dossier against the petitioner which
had led to the first time preventive detention of the petitioner and
same became the nature of second time grounds of detention
generated in relation to passing of impugned preventive detention
Order No.08/DMK/PSA/2024 dated 29.03.2024.
37. Therefore, the outcome of the first writ petition HCP No.
245/2018 ending in quashment of the then imposed preventive
detention custody upon the petitioner, is going to have its
determining effect on the outcome of the second time preventive
detention custody of the petitioner under challenge.
15 HCP No. 125/2024
38. In judgment dated 28.11.2018 passed by this Court in
writ petition HCP No. 245/2018, the quashment of preventive
detention of the petitioner had proceeded on the basis that the
writ respondents in the said writ petition despite opportunity
chose not to produce the detention record before the Court so as
to show as to whether the relevant material had been supplied to
the petitioner for enabling him to make an effective representation
against his detention and that vitiated his first time detention
resulting in its quashment.
39. In the present writ petition, the petitioner may not be
heard to say that he has not been supplied the material for
enabling him to make an effective representation on the count
that the petitioner is admitting that he has been served with the
order of detention and the grounds of detention which enabled
him to submit written representation dated 29.04.2024 to the
respondent No. 2 – District Magistrate, Kulgam and submitted
through registered postal service on 29.04.2024 addressed to the
District Magistrate, Kulgam against RLA RE831401411IN.
40. In the detention record produced from the respondents’
end pursuant to an order dated 04.10.2024 for the perusal of this
Court on 03.04.2025, this Court is not coming across with a copy
of the said representation of the petitioner so sent through
registered postal service mode.
16 HCP No. 125/2024
41. The reasons for submission of a representation on
behalf of the petitioner for seeking revocation of the petitioner’s
preventive detention through registered postal service mode is
because the representation was sent on behalf of the petitioner by
his wife Rafia Maqbool, otherwise if sent from the confines of the
Central Jail, Srinagar through its Superintendent, then there
would have been no scope for suspense as to whether the
representation related to the petitioner addressed to the detention
order making authority or to the Govt., has actually been received
or not and, therefore, the suspense in the present case stays with
this Court as to whether the registered postal letter sent
representation by the petitioner’s wife actually landed in the
hands of/office of the respondent No. 2 – District Magistrate,
Kulgam or not.
42. It has not been averred in the writ petition, particularly
when the writ petition has been filed by the petitioner through his
wife, as to whether she had enquired from the office of the District
Magistrate, Kulgam about receipt of representation so sent by her
through registered postal service mode.
43. Therefore, there is a miss on the part of the petitioner
as well in the matter of his exercise of right of filing a
representation which cannot be reckoned to have created any
scope for vitiating the preventive detention of the petitioner.
17 HCP No. 125/2024
44. Be that as it may, still this Court finds that the
petitioner’s second time preventive detention was rendered bad by
the omission on the part of the Superintendent of Police (SP),
Kulgam in omitting out the live-link which infact was intended to
form the basis for second time preventive detention of the
petitioner in terms of endeavour of the SHO Police Station
Qaimoh in reporting that the petitioner has been subjected to
preventive measure proceedings under section 107 of the Code of
Criminal Procedure, 1973 on three occasions though it has not
been reported as to what was the final outcome thereof.
45. Since the live-link came to go missing in the dossier of
the Superintendent of Police (SP), Kulgam against the petitioner,
so the second time impugned detention of the petitioner in the
eyes of law becomes just a repeat of the first time detention of the
petitioner as an extension thereof.
46. Therefore, the petitioner’s detention in terms of the
impugned detention Order No. 08/DMK/PSA/2024 dated
29.03.2024 issued by the respondent No. 2-District Magistrate,
Kulgam read with consequent approval and confirmation orders
vitiated with an illegality and the petitioner to be released from
the preventive custody.
47. This Court, therefore, sets aside the preventive
detention custody of the petitioner by quashing the aforesaid
18 HCP No. 125/2024
detention order. However, the respondent No. 2 – District
Magistrate, Kulgam is directed to revive the proceedings set into
effect under section 107 of the Code of Criminal Procedure, 1973
as reported in his report by the SHO Police Station Qaimoh before
the Executive Magistrate concerned and to take the said
proceedings to its logical conclusion on merits be it in calling
upon the petitioner to furnish the security bond for keeping peace
or to relieve him from said proceedings.
48. The revival of the proceedings under section 107 of the
Code of Criminal Procedure, 1973 (now in terms of corresponding
sections of Bharatiya Nagrik Sureksha Sanhita BNSS 2023) in
terms of the directions of this Court to be carried out by the
District Magistrate, Kulgam to take effect within a period of four
weeks from the passing of this judgment and the petitioner is
directed to furnish the personal bond as well as the surety bond
to the amount of Rs. One lac each to the satisfaction of the
Superintendent Central Jail, Srinagar to the effect that the
petitioner shall report himself in person before the District
Magistrate, Kulgam as and when called upon during the next four
weeks’ period with respect to revival of proceedings under section
107 of the Code of Criminal Procedure, 1973 directed to be
revived in terms of the directions of this Court hereby given.
49. The furnishing of personal bond as well as the surety
bond by the petitioner is a sine-qua-non for his release from the
19 HCP No. 125/2024
custody/confine of the Central Jail, Srinagar. The Superintendent
Central Jail, Srinagar to ensure that the requisite bonds are
submitted to him whereupon the same shall be forwarded to the
District Magistrate, Kulgam for being taken on record.
50. The detention record submitted by the respondents is a
scanned copy, as such, is to be retained on the file of this Court.
51. Disposed of.
(RAHUL BHARTI)
JUDGE
SRINAGAR
05 .05.2025
Muneesh
Whether the judgment is speaking : Yes
Whether the judgment is reportable : Yes
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