Jammu & Kashmir High Court – Srinagar Bench
Shakir Nabi Gojri @ Shakir vs Government Of J&K And Ors on 24 April, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 123/2023
Reserved On: 21st of April, 2025.
Pronounced On: 24th of April, 2025.
Shakir Nabi Gojri @ Shakir.
... Petitioner(s)
Through: -
Mr S. T. Hussain Senior Advocate with
Ms Nida Nazir, Advocate.
V/s
Government of J&K and Ors.
... Respondent(s)
Through: –
Mr Hakeem Aman Ali, Dy. AG.
CORAM:
Hon’ble Mr Justice Rahul Bharti, Judge.
(JUDGMENT)
01. Heard learned counsel for the parties.
02. Perused the pleadings and the record therewith.
03. Also perused the detention record related to the
petitioner produced by Mr Hakeem Aman Ali, learned Deputy
Advocate General.
04. The petitioner-Shakir Nabi Gojri @ Shakir, aged 19
years, acting through his sister-Mst. Saima Bano, has come to
HCP No. 123/2023Page 2 of 12
petition this Court seeking a writ of habeas corpus for securing
his lost personal liberty because of ongoing operation of
preventive detention order No. 32/DMB/PSA/2023 dated 8 th of
May, 2023 passed by the respondent No.2-District Magistrate,
Baramulla in exercise of power under section 8 (1) (a) (i) of the
Jammu & Kashmir Public Safety Act, 1978 subjecting the
petitioner to preventive detention custody on account of his
alleged activities being reckoned prejudicial to the security of the
State.
05. The petitioner is serving two years’ detention period
which though is fast approaching to its end on coming 9th of May,
2025 but is still retaining hope in the judicial system of the
Country to vindicate his honour and safeguard his fundamental
right by adjudicating his writ petition on merits to restore him his
most cherished fundamental right of personal liberty rather than
by default mode of disposal of his writ petition on account of
expiry of two years of maximum detention period.
06. The petitioner is a resident of Syed Kareem village in
District Baramulla and has studied upto 10th class from
Government Boys Higher Secondary School, Baramulla and
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leaving schooling so as to start earning for his self and parents by
occupation as a street vendor at bus stand Baramulla.
07. The Senior Superintendent of Police (SSP), Baramulla,
vide his letter No. Lgl/PSA/2023/1061-64 dated 3rd of May, 2023
submitted a dossier to the respondent No.2-District Magistrate,
Baramulla with respect to the petitioner thereby portraying and
projecting the petitioner to be a person with activities being
prejudicial to the security of the State in order to check which
preventive detention of the petitioner warranted under the Jammu
& Kashmir Public Safety Act, 1978.
08. Acting upon the said dossier, the respondent No.2-
District Magistrate, Baramulla formulated grounds of detention to
generate purported subjective satisfaction so as to hold that a case
was made out before him to direct the preventive detention of the
petitioner in order to prevent him from acting in a manner
prejudicial to the security of the State and that is how issuance of
Order No. 32/DMB/PSA/2023 dated 8th of May, 2023 came to
take place in terms whereof the petitioner was to be detained and
kept in Central Jail Kot Bhalwal, Jammu.
HCP No. 123/2023
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09. Pursuant to the detention order No.
32/DMB/PSA/2023 dated 8th of May, 2023, the petitioner came to
be held up and detained on 10th of May, 2023. ASI Surjeet Singh
No. 4131/S EXK.911542 of Police Station Baramulla carried out
the execution of the detention warrant upon the petitioner and
handed over to him one leaf of detention order, one leaf of notice
of detention and two leaves of grounds of detention as the material
for the petitioner to know all about his detention so as to apprise
him about the nature and basis of his preventive detention and to
make a representation upon that basis against his preventive
detention.
10. The detention order No. 32/DMB/PSA/2023 dated 8th
of May, 2023 came to be approved by the Home Department,
Government of Union Territory of Jammu & Kashmir vide
Government Order No. Home/BPV/1101/2023 dated 18th of May,
2023 when the case was submitted for opinion of the Advisory
Board constituted under the Jammu & Kashmir Public Safety Act,
1978 which opinion came forward in terms of a report dated 14 th
of June, 2023 as per requirement of sections 15 and 16 of the
Jammu and Kashmir Public Safety Act, 1978 holding sufficient
HCP No. 123/2023
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cause for subjecting the petitioner to preventive detention which
led to the issuance of Government Order No. Home/PB-V/1403 of
2023 dated 20th of June, 2023 confirming the preventive detention
of the petitioner and ordering detention for a period of six months
at the first instance and thereafter periodic extension orders came
to be passed to last for prescribed full two years term of
preventive detention of the petitioner. The last detention extension
of the petitioner was effected vide Government Order No.
Home/PB-V/2126 of 2024 dated 7th of November, 2024 directing
detention of the petitioner w.e.f. 10th of November, 2024 till 9th of
May, 2025 in Central Jail Varanasi, Uttar Pradesh.
11. The petitioner at his end came to submit a written
representation dated 8th of August, 2023 against proper receipt
from the office of the respondent No.2-District Magistrate,
Baramulla.
12. The petitioner came to institute the present writ
petition on 17th of October, 2023 when he had spent almost five
months of his preventive detention custody.
13. In his writ petition, the petitioner has submitted that by
no stretch of reference he has any criminal antecedents related to
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him and cited against him so as to be projected in bad and adverse
light by the Senior Superintendent of Police (SSP), Baramulla and
made to suffer loss of his personal liberty by the order of
respondent No.2-District Magistrate, Baramulla. The petitioner
has stated that he is the only son of his parents and, as such, their
caretaker.
14. The petitioner has set up a plea that he was never
supplied with the alleged dossier of the Senior Superintendent of
Police (SSP), Baramulla on the basis of which the respondent
No.2-District Magistrate, Baramulla acted upon to pass the
preventive detention order.
15. The grounds of challenge to the preventive detention
are set up in paragraph No. 7 (A) to (O) of the writ petition and
were supposed to be replied by the respondents para wise.
16. The petitioner in his writ petition has termed his
preventive detention illegal being in violation of the judgments of
the Hon’ble Supreme Court of India in the cases of: (i) ‘D. K.
Basu v. State of West Bengal, 1997 (1) SCC 416′; (ii) ‘Dilip K.
Basu v. State of West Bengal and Ors., 2015 AIR SC 2887′;
(iii) ‘Tariq Ahmad Dar v. State of Jammu & Kashmir and
HCP No. 123/2023
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Ors., 2017 (3) JKJ 684′; and (iv) ‘Kamleshwar Eshar Patel v.
Union of India, 1995 (4) SCC 51’.
17. The petitioner in his grounds of detention has very
categorically stated that his representation made against his
preventive detention has remained unconsidered by the respondent
No.2-District Magistrate, Baramulla.
18. In the counter affidavit filed on behalf of the
respondents to the writ petition supported by an affidavit of the
respondent No.2-District Magistrate Baramulla-Dr. Syed Sehrish
Asgar (IAS), the petitioner’s detention has been justified on the
tone and tenor of the grounds of detention so formulated by the
respondent No.2-District Magistrate Baramulla.
19. It is in this context that this Court is constrained to
reproduce the contents of the grounds of detention supporting the
order of detention of the petitioner. The grounds of detention,
thus, read as under:
“Grounds of Detention
Name: Shakir Nabi Gojri @Shakir
Son of: Ghulam Nabi Gojri
Address: Syed Kareem Baramulla
Tehsil: Baramulla
HCP No. 123/2023Page 8 of 12
District: Baramulla
Age: 21 Years approximately.
You were reportedly born at Mohalla Syed Karim, Baramulla
and is about 21 years old. You received education up to 10 th Class
from Government Boys Higher Secondary School Baramulla and
thereafter left the studies. You started working as street vendor at bus
stand Baramulla. The reliable and credible information/reports
received by various agencies reveals that you have voluntarily
developed contacts with various terrorists/secessionist organizations
to carry out the activities of secessionism and terrorism. Your
activities have emerged as a threat to the national security and
integrity of the Union of India. It has been further mentioned in the
dossier that you have deep rooted connections with the terrorist
outfits. You are one of such youth who at the behest of terrorists and
handlers across the border is providing all logistic support including
transportation/inputs availed by the police/security agencies clearly
suggests that you are in touch with anti-national elements and has
been taking instructions from them for making the job of carrying out
terrorist activities. The inputs further suggested that these instructions
are being received through a variety of recently available
communication technologies that are encrypted and very difficult to
decipher. However, after putting in strenuous efforts, various
agencies through co-ordinated efforts have been able to identify you
and un-earthen your linkages with anti-national elements. If you are
given a free hand, there is every apprehension that State might find it
difficult to reign in on the terror outfits operating in J&K as you are
an important identified arm of the terror ecosystem currently in
operation in J&K.
Your activities referred above to are highly prejudicial to the
maintenance of security of the state. If you are allowed to remain at
large, you may turn a potent threat to the security of the state. Normal
law has not been proved sufficient to stop you from indulging in the
activities which are highly anti-national and threat to the security and
sovereignty of the country.
Taking a wholesome view of the likely impact of your
activities at this point of time upon the overall scenario and in case
you remain at large, it can be safely said it will have an adverse
impact so far as the security of the state is concerned in order to
ensure the maintenance of the security of the state your detention
under the provisions of public safety act at this stage has become
imperative.
In view of the above, you are hereby detained under the
provisions of J&K Public Safety Act, 1978, you have a right of
making representation before the Government in the Home
HCP No. 123/2023Page 9 of 12
Department or before the undersigned within prescribed time period
against your detention, if you so choose.”
20. It is in the aforesaid background facts and
circumstances of the case that the adjudication of the petitioner’s
writ petition is to take effect as to whether the preventive
detention against the petitioner deserves to be quashed or let to
run its full course which would bring petitioner to his release from
the jail either by the intervention of the Court or by default.
21. The first anomaly which vitiated the preventive
detention of the petitioner from the very outset is that the grounds
of detention and dossier are mirror image of each other making no
distinction as to whether the Senior Superintendent of Police
(SSP), Baramulla has generated the grounds of detention or the
respondent No.2-District Magistrate, Baramulla has prepared the
dossier text. There is no shade of distinction between the dossier
and the grounds of detention. The grounds of detention are as fact
blank as the dossier itself as the petitioner was and is having no
trace of a criminal antecedent is subjectivize to be anti-national
without any overt or covert act worth factual reference being made
in the dossier for the respondent No.2-District Magistrate,
Baramulla to make reference in his grounds of detention.
HCP No. 123/2023
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22. Thus, this Court has no iota of doubt to say and
observe that the dossier as well as the grounds of detention are ipsi
dixit on the part of the Senior Superintendent of Police (SSP),
Baramulla and the respondent No.2-District Magistrate, Baramulla
and the preventive detention of the petitioner right from the
inception was misconceived and baseless amounting to abuse of
jurisdiction of preventive detention on the part of the Senior
Superintendent of Police (SSP), Baramulla and the respondent
No.2-District Magistrate, Baramulla.
23. The very fact that the petitioner was not served with a
copy of the dossier is a pointer that the respondent No.2-District
Magistrate, Baramulla did not intend to enable the petitioner to
bear an insight into the dossier otherwise the petitioner in his
representation would have lost no occasion to say that there are no
reported acts of omission or commission on his part so as to
brandish the petitioner in a negative character.
24. The petitioner’s effective right of representation was
seriously compromised by handing over him four leaves
compilation comprising of detention order (one leaf), notice of
detention (one leaf) and grounds of detention (two leaves) leaving
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it for the petitioner to stay in guess as to what led to his preventive
detention at the end of the respondent No.2-District Magistrate,
Baramulla.
25. The petitioner’s representations made both to the
District Magistrate, Baramulla as well as to the Commissioner/
Secretary to Home Department, Government of Union Territory
of Jammu & Kashmir have gone begging for consideration and
response except to suffer to and fro reference on the detention file
of the petitioner at the end of the Home Department, Government
of Union Territory of Jammu & Kashmir and respondent No.2-
District Magistrate, Baramulla. In the counter affidavit, not even a
whisper of word has been stated for the notice to this Court as to
what fate the representations of the petitioner came to be subjected
to and that is another vitiating factor with respect to preventive
detention of the petitioner.
26. In the light of the aforesaid facts and circumstances of
the case, the preventive detention of the petitioner right from its
very inception in terms of its basis and objective was malice in
law, misconceived and baseless which warrants quashment
without further loss of time.
HCP No. 123/2023
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27. Accordingly, preventive detention order No.
32/DMB/PSA/2023 dated 8th of May, 2023 passed by the
respondent No.2-District Magistrate, Baramulla read with
consequent approval/ confirmation and extension orders with
respect to the detention of the petitioner are hereby quashed. The
petitioner is directed to be restored to his personal liberty.
Superintendent Central Jail Varanasi, Uttar Pradesh is directed to
release the petitioner forthwith.
28. The respondent No.2-District Magistrate, Baramulla is
directed to ensure that a docket is sent immediately from the end
of his office by or before 25th of April, 2025 so as to ensure the
release of the petitioner from Central Jail, Varanasi, Uttar Pradesh
without loss of time.
29. Disposed of.
30. The detention record is in scanned form and is, thus,
retained.
(Rahul Bharti)
Judge
SRINAGAR
April 24th, 2025
“TAHIR”
i. Whether the Judgment is approved for reporting? Yes/ No.
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document
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