Safiya Malik

The High Court of Jammu & Kashmir and Ladakh at Srinagar, Single Bench of Justice Rahul Bharti, quashed a preventive detention order passed under the Jammu & Kashmir Public Safety Act, 1978, against a detenue currently lodged in Central Jail, Srinagar. The Court found the detention order to be vitiated by the non-placement of crucial judicial documents before the detaining authority and termed the action a misuse of preventive detention to impose punitive imprisonment.

The case arises out of preventive detention initiated against the petitioner by order No. 37/DMB/PSA/2024 dated 13th September, 2024, issued by the District Magistrate, Baramulla. This action followed a request from the Senior Superintendent of Police (SSP), Baramulla, dated 10th September, 2024, seeking detention under the Jammu & Kashmir Public Safety Act, 1978. The SSP's dossier alleged that the petitioner was engaged in activities prejudicial to public order, particularly in connection with the General Elections to the Lok Sabha, 2024.

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According to the dossier, the petitioner, in collaboration with one Hilal Ahmad Dar, allegedly printed and posted threatening posters on behalf of a banned terrorist organization, The Resistance Front (TRF), with an aim to deter public participation in the electoral process. Reference was made to FIR No. 39/2024 registered at Police Station Kreeri under Section 13 of the Unlawful Activities (Prevention) Act, 1967, and Sections 506 and 120-B of the IPC.

The detention was executed on 14th September, 2024. The petitioner challenged the detention through the writ petition filed on 17th October, 2024, primarily on the ground that his only criminal involvement pertained to FIR No. 39/2024 in which he had already secured bail on 10th August, 2024 from the Designated Special Court (Additional Sessions Judge), Baramulla.

It was argued by the petitioner that the bail order, granted on merit and not as a matter of indulgence, had not been supplied or referenced in the dossier placed before the District Magistrate. Instead, only a docket indicating the bail was included, omitting the court's reasoning. The petitioner contended that such suppression was material and rendered the detention order legally unsustainable.

The petitioner also submitted that the grounds of detention were vague, without incident-specific details, and essentially replicated the contents of the police dossier. He categorically denied any association with Hilal Ahmad Dar or the activities alleged therein.

In response, the respondents filed a counter affidavit on 30th December, 2024, reiterating the grounds stated in the dossier and defending the preventive detention.

The government subsequently approved and extended the petitioner’s detention through a series of orders: Government Order No. Home/PB-V/2047 of 2024 dated 22nd October, 2024 (initial 3-month detention), Government Order No. Home/PB-V/2322 of 2024 dated 10th December, 2024 (extension till 13th March, 2025), and Government Order No. Home/PB-V/423 of 2025 dated 11th March, 2025 (extension till 13th June, 2025).

Upon examining the detention record produced during the hearing, the Court recorded that "there is found nothing accompanying the dossier of Senior Superintendent of Police (SSP), Baramulla in terms whereof the projection of the petitioner in the manner as set out in the dossier came to be projected." It further noted that "the only material found available on the file related to the petitioner’s preventive detention is FIR No. 39/2024 and the police challan pursuant thereto."

The Court took critical note of the omission of the bail order, observing: "Instead of bail order passed by the Additional Sessions Judge, Baramulla, a copy of the docket was found sufficient to apprise the respondent No.2-District Magistrate, Baramulla about the fact of bailing out of the petitioner in the criminal case."

Justice Rahul Bharti reiterated the Court's consistent view that "furnishing of bail orders related to a person whose preventive detention is being sought becomes essential and indispensable on the part of the sponsoring authority..." The failure to supply this material, according to the Court, violated the settled legal requirement: "Despite ad nauseum reiteration of position of law in this respect... the message of law is being lost to the sponsoring authority... resulting in repeat of preventive detention taking place on insufficient material."

In stern terms, the Court held: "The preventive detention of the petitioner being made a device to overreach the criminal court which came to grant bail in favour of the petitioner and, thus, imposing a punitive imprisonment upon the petitioner through preventive detention mode."

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Based on the findings, the Court stated:

"A case is made out for quashment of the preventive detention of the petitioner. Accordingly, preventive detention order bearing No. 37/DMB/PSA/2024 dated 13th of September, 2024 passed by respondent No.2-District Magistrate, Baramulla read with consequent approval/ confirmation Government Order No. Home/PB-V/2047 of 2024 dated 22nd of October, 2024 as also extension orders No. Government Order No. Home/PB-V/2322 of 2024 dated 10th of December, 2024 and Government Order No. Home/PB-V/423 of 2025 dated 11th of March, 2025 are hereby quashed."

The Court directed that the petitioner be "restored to his personal liberty by release from the Jail by its concerned Superintendent."

Advocates Representing the Parties

For the Petitioner: Mr Syed Sajad Geelani, Advocate

For the Respondents: Mr Hakeem Aman Ali, Deputy Advocate General

Case Title: Mohammad Afreen Zargar v. Union Territory of J&K and Ors.

Case Number: HCP No. 338/2024

Bench: Justice Rahul Bharti

[Read/Download order]