Jammu & Kashmir High Court – Srinagar Bench
Ikhlaq Imtiyaz Sheikh vs Ut Of J&K Through Financial … on 25 March, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 196/2024
Reserved on: 20.03.2025
Pronounced on: 25.03.2025.
Ikhlaq Imtiyaz Sheikh, Age: 21 Years
S/o Imtiyaz Ahmad Sheikh
R/o Wattergam, Rafiabab
Through his father
Imtiyaz Ahmad Sheikh
S/o Gh. Nabi Sheikh
R/o Wattergam, Rafiabad, Baramulla.
... Petitioner(s)
Through: Mr. Syed Sajad Geelani, Advocate.
Vs.
1. UT of J&K through Financial Commissioner (Addl. Chief
Secretary), Home Department, J&K, Jammu/ Srinagar.
2. District Magistrate, Baramulla.
3. Superintendent, District Jail, Kupwara.
...Respondent(s)
Through: Mr. Jehangir Ahmad Dar, GA with
Ms. Shaila Shameem, Assisting Counsel.
CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
1. Heard learned counsel for both the sides.
2. Perused the writ pleadings and the documents therewith.
Also perused the detention record produced by Mr.
Jehangir Ahmad Dar, learned Government Advocate for
the respondents.
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3. The petitioner is aggrieved of loss of his personal liberty
having taken place on account of his preventive detention
ordered by the respondent No.2-District Magistrate,
Baramulla under the Jammu & Kashmir Public Safety Act,
1978 and for the purpose of reclaiming his said personal
liberty the petitioner has come to petition this Court
through his father thereby seeking writ jurisdiction of this
Court under article 226 of the Constitution of India by
issuance of a writ of habeas corpus.
4. The institution of present writ petition came to take place
on 28th of May, 2024.
5. The respondent No.2-District Magistrate, Baramulla by
virtue of an order No. 18/DMB/PSA/2024 dated 6th of April,
2024 came to hold the petitioner’s activities prejudicial to
the security of the Union Territory of Jammu & Kashmir
and so in order to curb the continuation of his said alleged
activities, the petitioner’s personal liberty was intended to
be curtailed under section 8 of the Jammu & Kashmir
Public Safety Act, 1978.
6. The process for subjecting the petitioner to suffer
preventive custody under the Jammu & Kashmir Public
Safety Act, 1978 was, in fact, set into motion by the Senior
Superintendent of Police (SSP), Sopore who, by virtue of
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his communication No. PROSS/PSA-/2024/12983 dated
30th of March, 2024, submitted a dossier with respect to
petitioner to the respondent No.2-District Magistrate,
Baramulla for seeking exercise of jurisdiction under
section 8 of the Jammu & Kashmir Public Safety Act, 1978
to detain the petitioner.
7. The dossier so submitted by the Senior Superintendent of
Police (SSP), Sopore projected the petitioner, born in the
year 2002 as a 10th class pass student from the
Government High School, Wattergam who in the year
2019 came to develop contact with one OGW namely
Rameez Ahmad Malla of Hizbul Mujahideen (HM) outfit
who further introduced the petitioner to a foreign terrorist
Maz Bahi of Hizbul Mujahideen (HM) outfit who motivated
the petitioner towards terrorism and worked for terrorists,
thus, making the petitioner to start providing logistics and
other support to the said terrorist as well as other terrorists
to carry out terror activities in the area.
8. In the dossier, the petitioner was referred to be found in
conflict with law with his involvement in FIR No. 161/2019
dated 7th of November, 2019 registered by the Police
Station Dangiwacha for alleged commission of offences
under sections 18 and 39 of the Unlawful Activities
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HCP No. 196/2024
(Prevention) Act, 1967 read with section 7/25 of the Arms
Act, 1959.
9. In this FIR, the petitioner along with three other accused
persons were booked bearing the allegations that one (01)
pistol with magazines and five (05) cartridges were
recovered from the possession of co-accused Rameez
Ahmad Malla, one (01) chinese hand grenade recovered
from second co-accused Reyaz Khaliq Parray, one (01)
chinese hand grenade recovered from other third co-
accused Waseem Manzoor Gazi and whereas twelve (12)
pages of posters of Hizbul Mujahideen outfit from the
possession of petitioner.
10. By reference to the said FIR, it came to be mentioned
in the dossier that final police report/ challan stood
submitted before the criminal court of law for trial wherein
the petitioner came to be admitted to bail, on which date
and vide which order no mention in the dossier nor any
bail order document accompanying the said dossier was
made.
11. The petitioner was second time found involved in
alleged criminal acts with respect to FIR No. 151/2020
dated 24th of December, 2020 registered again by the
Police Station Dangiwacha for alleged commission of
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offence punishable under section 307 Indian Penal Code
(IPC) read with 4/5 Explosive Substances Act, 1908.
12. In this case also, the petitioner came to be arrested
and implicated with other co-accused on the allegation of
having lobbed grenade on SSB Coy camped at Mini
Secretariat, Wattergam. In this case also, the final police
report/ challan is said to have been presented before the
competent court of law for subjecting the petitioner to
stand trial. In this criminal case also, reference about the
petitioner having been granted bail came to be mentioned
but without reference to any order or date of release on
bail.
13. Petitioner’s third time involvement in a criminal case
under FIR No. 20/2021 dated 12th of April, 2021 registered
by the Police Station Kralgund for alleged commission of
offences under section 7/25 Arms Act, 1959 read with
sections 13/16/18/20/39 Unlawful Activities (Prevention)
Act, 1967 came to be referred without any reference as to
whether in the said case any final police report/ challan
has come to be submitted against the accused person/s
or not but a fact came to be mentioned that even in this
FIR the petitioner stood bailed out but without any
reference to the date of bail and order of bail.
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HCP No. 196/2024
14. It is on the basis of the said dossier related to the
petitioner that the respondent No.2-District Magistrate,
Baramulla had formulated grounds of detention literally
following the text of the dossier to draw his subjective
satisfaction that the petitioner was a case deserving
slapping of preventive detention custody upon him and
that is how the preventive detention order No.
18/DMB/PSA/2024 dated 6th of April, 2024 came to be
passed against the petitioner.
15. This detention order came to be executed upon
petitioner by ASI Saranpal Singh No. 187/Spr EXK
981910 of District Police Lines (DPL), Sopore who took
the petitioner into custody on 9th of April, 2024 and handed
over him the grounds of detention comprising of three (03)
leaves and other documents twenty seven (27) leaves,
besides purportedly explaining the order and grounds of
detention to the petitioner before getting him lodged in the
District Jail, Kupwara.
16. The detention order No. 18/DMB/PSA of 2024 dated
6th of April, 2024 came to be approved by the Government
of Union Territory of Jammu & Kashmir by virtue of a
Government Order No. Home/PB-V/754 of 2024 dated
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15th of April, 2024 forwarding the preventive detention
case of the petitioner for opinion of the Advisory Board.
17. The petitioner, acting through his father, came to
submit a written representation dated 19th of April, 2024
seeking recalling of the preventive detention against him
for the reasons as set out in the representation.
18. The petitioner’s preventive detention case was
referred to the Advisory Board for its opinion which came
to be tendered on file No. Home/PB-V/207/2024 dated
24th of April, 2024 with respect to which the petitioner was
extended an opportunity of personal hearing on 23rd of
April, 2024. As per the Advisory Board’s opinion, the
preventive detention of the petitioner was for a sufficient
cause which, thus, paved way for the Government of
Union Territory of Jammu & Kashmir to issue a
Government Order No. Home/PB-V/937 of 2024 dated 2nd
of May, 2024 confirming the petitioner’s preventive
detention initially for a spell of six months’ period from 9th
of April, 2024 till 8th of October, 2024.
19. The petitioner in his writ petition has assailed his
preventive detention on number of grounds as set out in
paragraph No. 10 (A) to (F).
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HCP No. 196/2024
20. The petitioner has highlighted the fact that the FIRs
in which he came to be implicated were of the time when
the petitioner was a juvenile and after having attained the
age of majority there is not even a single incident of bad
antecedent reported from the end of the petitioner so as
to suffer the rigor of preventive detention order upon his
personal liberty.
21. The petitioner has also referred to the fact that his
alleged incidents which came to be cited and highlighted
against him, besides being related to him when he was a
juvenile, are of stale nature which could not have found a
live link for the petitioner to suffer loss of his personal
liberty.
22. The petitioner has further emphasized that his written
representation filed through his father has gone
unattended and un-responded thereby wasting his
constitutional right.
23. The respondents in their counter affidavit, filed on 1st
of October, 2024, have come up with the literal repeat of
the tone and tenor of the dossier as well as the grounds of
detention. The counter affidavit has been filed by the
District Magistrate, Baramulla wherein there is no whisper
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of reply as to what fate the representation of the petitioner
has been subjected to
24. Upon expiry of the first six months’ period of
preventive detention of the petitioner, the Home
Department, Government of Union Territory of Jammu &
Kashmir came forward with a Government Order No.
Home/PB-V/1915 of 2024 dated 4th of October, 2024
thereby extending the petitioner’s detention for another
period of six months w.e.f. 9th of October, 2024 till 8th of
April, 2025 with continuation of his lodgment in District
Jail, Kupwara.
25. Upon perusal of the facts and circumstances of the
case, this Court has a number of grounds open and
available with equal emphasis to quash the preventive
detention of the petitioner. Even when in any given case
only one ground is available for setting aside the
preventive detention of a detenue as against non-
availability of other grounds even that suffices the purpose
for restoring a detenue to his/ her personal liberty by
terminating his/ her preventive detention through judicial
intervention.
26. The case of the present petitioner is on a better
footing.
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27. First of all, it defies very common sense
understanding as to what was the constraint for the
sponsoring agency i.e., law and enforcement authority of
District Baramulla, which in the present case is the Senior
Superintendent of Police (SSP), Sopore, not to come up
with full disclosure of facts in the dossier related to a
detenue which in the present case is the petitioner.
28. By reference to all the three FIRs alleged against the
petitioner to be contributory factors for preventive
detention to be slapped upon the petitioner, the Senior
Superintendent of Police (SSP), Sopore has made a very
muted reference that the petitioner has been granted bail
but without fetching the copy of the bail order from the
concerned criminal court so as to not only for his own
understanding of the facts and circumstances of the case
leading to the grant of bail in favour of the petitioner but
also for facilitating the detention order making authority to
know that notwithstanding the grant of bail in favour of the
detenue a case for his preventive detention is still made
out and thereupon leaving the detention order making
authority to take a call at its own discretion. In the case of
the present petitioner, not even a full one line whisper with
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respect to grant of bail is there except passing few words
that the petitioner is on bail.
29. If the petitioner by his alleged reported activities was
such a serious threat to the security of the Union Territory
of Jammu & Kashmir, then his alleged activities were
potentially cognizable even when he got bailed out in the
first criminal case related to FIR No. 161/2019 followed by
second FIR No. 151/2020 when the law and enforcement
agency of District Baramulla had the opportunity to seek
cancellation of bail granted in favour of the petitioner by
the criminal court in relation to FIR No. 161/2019 but
nothing of that sort was bothered to be done at the end of
the law and enforcement agency or for that matter the
Prosecution agency as if the preventive detention was a
pre-conceived mindset reserved for the authorities to be
resorted to against the petitioner at any given point of time
at the sweet will of the law and enforcement agency.
30. The detention authority of District Magistrate,
Baramulla and the Home Department of the Government
of Union Territory of Jammu & Kashmir acted with sheer
non-application of mind without bothering to pause and
pose a query to the Senior Superintendent of Police
(SSP), Sopore as to why the bail orders related to the
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petitioner in the context of the FIRs referred in the dossier
have not been submitted for the appreciation of the
detention order making authority.
31. This is where the non-application of mind on the part
of the District Magistrate, Baramulla as well as the Home
Department, Government of Union Territory of Jammu &
Kashmir came to set in vitiating the preventive detention
of the petitioner.
32. On another front, the preventive detention of the
petitioner is rendered vitiated with an illegality as the
petitioner’s written representation remained un-responded
to the petitioner and instead became subject matter of
intra Government circulation without bothering that the
said representation is by the petitioner, of the petitioner
and for the petitioner to know from the end of the detaining
authority/ Government as to what is the final outcome of
his said representation.
33. There is no escape from the fact that the petitioner’s
representation was actually received in the hands of the
District Magistrate, Baramulla as well as in the hands of
the Home Department, Government of Union Territory of
Jammu & Kashmir which became subject matter of to and
fro reference and even to the extent a recommendation for
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its rejection was made and which actually was conveyed
by the Home Department to the District Magistrate,
Baramulla vide communication No. Home/PB-V/207/2024
(7453750) dated 9th of August, 2024 but the District
Magistrate, Baramulla bothered least to convey the said
rejection to the petitioner and so much so even in his
counter affidavit filed on 1st of October, 2024, the District
Magistrate, Baramulla did not deem it appropriate to share
the said fact of rejection of the petitioner’s representation
with this Court. Nothing can explain better the casualness
on the part of the District Magistrate, Baramulla in dealing
with the preventive detention of the petitioner than this
aspect.
34. The cumulative effect of all the aforesaid facts and
circumstances and inferences borne out therefrom is that
the preventive detention of the petitioner is seriously
vitiated with illegality and, therefore, liable to be set aside.
35. Accordingly, the preventive detention order No.
18/DMB/PSA/2024 dated 6th of April, 2024 passed by the
respondent No.2-District Magistrate, Baramulla read with
confirmation/ approval Order No. Home/PB-V/937 of 2024
dated 2nd of May, 2024 read with subsequent extension
order/s passed by the Home Department, Government of
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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.
36. Disposed of.
37. Detention record be returned
( RAHUL BHARTI )
JUDGE
Srinagar
25.03.2025
TAHIR
Whether the Judgment/Order is reportable: Yes / No
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document