Jammu & Kashmir High Court – Srinagar Bench
Arsalaan Mohi-Ud-Din Sheikh vs Ut Of Jammu And Kashmir on 28 August, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HCP 102/2024 Page |1
IN THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP 102/2024
Reserved on:07.08.2025
Pronounced on: 28: 08 :2025
ARSALAAN MOHI-UD-DIN SHEIKH, ...Petitioner(s)
AGED 25 YEARS
S/O GHULAM MOHI-UD-DIN SHEIKH
R/O LACHMANPORA BATMALOO
SRINAGAR
THROUGH HIS FATHER
GHULAM MOHI-UD-DIN SHEIKH, AGED
60 YEARS
Through: Mr. Wajid Haseeb, Advocate
Vs.
1. UT OF JAMMU AND KASHMIR, ...Respondent(s)
THORUGH PRINCIPAL SECRETARY,
HOME DEPARTMENT, J&K GOVT.,
CIVIL SECTT. SRINAGAR/JAMMU
2. DISTRICT MAGISTRATE, SRINAGAR
3. SR. SUPERINTENDENT OF POLICE
SRINAGAR
Through: Ms. Nadiya Abdullah, AC vice
Mr. Mohsin Ul Showkat Qadri, Sr.AAG
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI,JUDGE
JUDGMENT
1. The petitioner is assailing Order No.DMS/PSA/02/2024 dated
29.03.2024 hereinafter for short to be referred as “the impugned
order”, issued by the District Magistrate Srinagar by virtue of which
Arsalan Mohi-ud-din Sheikh S/o Ghulam Mohid-ud-din Sheikh R/o
Lachmanpora Batamaloo, Srinagar, for short to be referred as “the
detenue”, the son of the petitioner, has been detained under the
provisions of the J&K Public Safety Act (PSA) 1978 from acting in
HCP 102/2024 Page |2
any manner prejudicial to the maintenance to the security of the state,
on the grounds taken in the memo of the petition.
2. Brief facts of the case, as pleaded in the petition, are that the detenue
is peace loving citizen, having never indulged in any subversive
activity. The detenue has been falsely implicated in a case FIR
38/2023 of Police Station Nowhatta, Srinagar. The detenue though
having been admitted to bail by the competent court of law on
10.02.2024, was not released but was detained under 107 of the Code
of Criminal Procedure and while being in custody the detenue was
shifted to Central Jail Srinagar and was detained in terms of the
impugned order.
3. Feeling aggrieved of the impugned order the petitioner is challenging
the same by the medium of this petition, inter alia, on the grounds
that there is no nexus of the allegations with the detenue being
fabricated; the impugned order appears to have been wrongly issued
against the detenue, as the detenue has never associated himself with
any person or organization as referred to in the grounds of detention;
that the allegations made in the grounds of detention are vague, non-
existent and no prudent man can make a representation against such
an unjustified and unreasonable detention order; that there is no
specific allegation against the detenue in the entire grounds of
detention, therefore the satisfaction recorded by the detaining
authority is vague and the impugned order suffers from non-
application of mind on the part of the detaining authority; that the
allegations alleged against the detenue in the FIR as occurred on
16.10.2023 whereafter the detenue was arrested and released on bail
HCP 102/2024 Page |3
and later on bound down under 107 Cr.PC of which there is no
violation alleged and yet the impugned order was issued five months
later against the detenue; that there is no mention of the detenue
having been admitted to bail made in the impugned order; that there
are no compelling reasons spelled out by the detaining authority that
warranted issuance of the impugned order; that the impugned order is
the replica of the Police Dossier which suggests that the detaining
authority has not issued the impugned order by proper application of
mind; that the representation filed by the petitioner against the
impugned order has not been considered in due course of time nor the
detenue was provided the entire material on the basis whereof his
detention was ordered.
4. Upon notice, the respondents appeared and filed their counter
affidavit resisting the claim of the petitioner primarily on the grounds
that the assertions made in the petition are baseless, the detenue was
found involved in various anti-national activities; that he had a
criminal bent of mind, the detaining authority has carefully examined
the evidence and information which points towards the involvement
of the detenue; that the detenue was assessed to be a potential threat
for maintaining the public order; that the grant of bail in the criminal
offence cannot debar the detaining authority to order preventive
detention of an individual; that the safeguards provided in the act have
been judiciously followed which includes the safe guard provided the
Article 22(5) of the Constitution of India; that the entire material
relied upon by the detaining authority has been supplied to the
detenue within the statutory period in terms of section 13 of the Act;
HCP 102/2024 Page |4
that the detenue was informed of his right to make a representation
against his detention order of chooses.
5. I have heard leaned counsel for the parties, perused the impugned
order and considered the submissions made by learned counsel for the
parties.
6. It seems from the detention records that the detenue has been arrested
in connection with his involvement in a case FIR 38/2023 of Police
Station Nowhatta, Srinagar in which he was admitted to bail by the
competent court of law and subsequent thereto he was detained under
preventive detention by the respondent No.2. The preventive
detention of the detenue has been ordered on the same allegations as
contained in the FIR supra in which he was granted bail.
7. The perusal of the detention record would further reveal that the
detenue has not been supplied the material on the basis whereof his
detention has been ordered and there is absolute no mention of the
facts anywhere in the records that the detenue was in fact admitted to
bail. It also transpires from the perusal of the records that the
detaining authority has not mentioned as to what were the
compelling circumstances that weighed with the detaining authority to
order preventive detention of the detenue and as to why the
substantive laws were insufficient to deter the detenue from indulging
in the alleged subversive activities.
8. The non-application of mind on the part of the detaining authority is
writ large on the face of the record as the detaining authority not only
has failed to record as to why the preventive detention of the detenue
is warranted despite his release on bail in the same case in which he
HCP 102/2024 Page |5
was sought to be detained, but has also failed to even reflect such a
fact in the record.
9. The Apex Court in case titled “Anant Sakharam Raut and Ors vs.
State of Maharashtra and Anr.” reported as AIR 1987 SC 137 has held
that the detention order cannot sustain if the same appears to be an
outcome of non-application of mind. The detaining authority in the
instant case has altogether lost sight of an important fact that the
detenue has been granted bail in respect of the allegations for which
he has been detained under preventive detention inasmuch as the
counter affidavit does not contain any specific averment in this behalf.
All that is reflected therein is that the respondents have the privilege
of power and authority to pass detention order even after the bail has
been granted in favour of the accused. This being a general assertion
proves nothing, but non-application of mind on part of the detaining
authority. The relevant extract of the said judgement is reproduced
hereinbelow:
“We are not satisfied that this is a fit case to resort to
preventive detention. We refrain from referring to the
other grounds urged before us and from examining them.
The petitioner is entitled to succeed on the first ground.
We hold that there was clear non-application of mind on
the part of the detaining authority about the fact that the
petitioner was granted bail when the order of detention
was passed. In the result we set aside the Judgment of the
Bombay High Court under appeal, quash the order of
detention and direct that the petitioner be released
forthwith. The Appeal and the Writ Petition are allowed
without any order as to costs.”
10.The Apex Court in case titled “Jai Singh and Ors. Vs State of Jammu
and Kashmir” reported as AIR1985SC 764 has observed that if the
detention order is verbatim copy of the dossier, it speaks about non-
application of mind by detaining authority. The liberty of a subject is
HCP 102/2024 Page |6
a serious matter and it is not to be trifled in this casual, indifferent and
routine manner.
11.The court is convinced that the petitioner has been able to prove that
the detaining authority has not applied its mind while issuing the
impugned order and since the petitioner has succeeded in proving his
case on the factum of non-application of mind, there is no need to go
into other grounds of the challenge.
12.Viewed thus, the petition is allowed and the detention order No.
DMS/PSA/02/2024 dated 29.03.2024 passed by District Magistrate,
Srinagar, whereby the detenue namely, Arsalan Mohi-ud-din Sheikh
S/o Ghulam Mohi-ud-din Sheikh R/o Lachmanpora Batamaloo,
Srinagar, has been detained, is quashed and the respondents are
directed to release the detenue forthwith.
(MOKSHA KHAJURIA KAZMI)
JUDGE
SRINAGAR:
28-08 -2025
Mubashir
1. Whether the judgment is speaking: Yes/No
2. Whether the judgment is reportable: Yes/No
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