Isabella Mariam

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rahul Bharti declared the preventive detention of a citizen under the Jammu & Kashmir Public Safety Act, 1978 to be unlawful and directed his immediate release from custody. The Court quashed the detention order and all subsequent approvals, terming the process a "blatant negation of the constitutional right of the petitioner". The Court concluded that the detention order was based on unsupported claims and procedural lapses, and thus could not be sustained in law. The Superintendent of the concerned jail was instructed to execute the release without delay.

The present writ petition was filed on 16 December 2024 by Mst. Nayeem Bano, the wife of the petitioner, Abdul Rehman Bhat, seeking issuance of a writ of habeas corpus under Article 226 of the Constitution of India. The petition challenged an order of preventive detention numbered DMS/PSA/44/2024 dated 3 December 2024 passed by the District Magistrate, Srinagar, which led to the petitioner’s detention on 4 December 2024 at the District Jail, Poonch.

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The detention order was issued pursuant to a communication dated 12 November 2024 (No. LGL/Det-PSA/2024/29877-80) from the Senior Superintendent of Police (SSP), Srinagar. The communication included a two-and-a-half-page dossier alleging that the petitioner had been influenced by radical ideology from an early age and had become actively involved with terrorists and Over Ground Workers (OGWs) of The Resistance Front (TRF). It was alleged that the petitioner had shared sensitive information regarding security forces' movement and propagated terrorist ideology in his locality, thereby motivating others toward unlawful activities.

The dossier also mentioned that the petitioner had been involved in FIR No. 127/2022 registered at Police Station Parimpora under Sections 153-A, 153-B, and 505 of the Indian Penal Code (IPC), read with Sections 16/18/20/39 of the Unlawful Activities (Prevention) Act, 1967. However, it was noted that the petitioner had been granted bail in the case, although the details of the bail order were omitted from the dossier.

Furthermore, the petitioner was said to have been bound down under Sections 170/126 of the Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023 by Police Station Sangam on two occasions, i.e., 3 August 2024 and 6 September 2024. Despite this, he was still described as being involved in prejudicial activities threatening the security of the Union Territory.

The District Magistrate, Srinagar, acting on the SSP’s dossier, drew subjective satisfaction and passed the detention order on 3 December 2024. The order was executed on 6 December 2024 by Parvaiz Ahmad, ASI of Police Station Nowhatta, who delivered a 45-page compilation to the petitioner containing the detention warrant, grounds of detention, the dossier, and other documents. The petitioner was also informed of his right to make a representation against the detention order.

A representation for revocation of the detention was addressed by the petitioner’s son, Dawood Ahmad Bhat, to the Deputy Commissioner, Srinagar. This representation was also forwarded to the Divisional Commissioner, Kashmir, and then to the District Magistrate, Srinagar via communication No. DivCom/RA/Misc/7617315/2024 dated 11 December 2024.

In response to the writ petition, the respondents filed a counter affidavit on 18 March 2025. The Court, on 24 March 2025, directed the Government Advocate to produce the record related to the orders dated 13 August 2024 and 6 September 2024, which were claimed to support the petitioner being bound down under BNSS. Despite multiple opportunities, no such records were produced.

The Court observed that the petitioner had been granted bail on 31 July 2024 in FIR No. 127/2022 by the Additional Sessions Judge (TADA/POTA), Srinagar. The bail was merit-based and contained stringent conditions, including restrictions on the petitioner’s communication and internet use. These conditions included not contacting witnesses, not using encrypted messaging apps or proxy networks, and disclosing mobile details to the police. Despite these, the SSP did not examine the bail order or consider invoking bail cancellation if violations were suspected.

“In his dossier, the Senior Superintendent of Police (SSP), Srinagar least bothered to call for a certified copy of the bail order… to examine as to under which facts and circumstances the Court… felt persuaded to grant bail.”

“So much so, from the text of the dossier, it is not even forth coming as to whether in reference to FIR No. 127/2022 any final police report under Section 173 of the Code of Criminal Procedure (Cr. P. C.), 1973 came to be presented before the competent court of law or not.”

“The most patent anomaly… is the omission on the part of the respondent No.2-District Magistrate, Srinagar in forwarding the representation made by the son of the petitioner…”

“It defies common sense that… the respondent No.2-District Magistrate, Srinagar took more than one and a half month to address a communication… thereby apprising the Home Department… about the written representation…”

“Thus, for sure the Advisory Board was taken for a ride by suppression of fact that there was no representation made on behalf of the petitioner…”

“This singular omission… is nothing but a blatant negation of the constitutional right of the petitioner in the matter of representation against his preventive detention…”

“Another factor vitiating the preventive detention… seems to have been resorted only to out-maneuver the indulgence of the Court… in granting bail…”

“Condition No. (b)… shall not in any way misuse his liberty nor shall he get in touch with any of the witnesses or try to influence the course investigation.”

“Condition Nos. (f) and (g)… ensure that the bail granted… is not subjected to any abuse.”

“In the light of the aforesaid facts and circumstances… the preventive detention… is, thus, held to be an illegal exercise of jurisdiction… rendering it unsustainable deserving to be set aside.”

The Court concluded the matter with the following directives:

“The preventive detention order No. DMS/PSA/44/2024 dated 3rd of December, 2024 passed by respondent No.2-District Magistrate, Srinagar read with consequent approval/confirmation/extension order(s) passed by the Home Department, Government of Union Territory of Jammu & Kashmir with respect to the petitioner are hereby set aside.”

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“The petitioner is directed to be restored, without loss of any further time, to his personal liberty by his immediate release from the concerned Jail…”

“To that effect the Superintendent of the concerned Jail detaining the petitioner to act in compliance of the directions hereby being issued…”

Advocates Representing the Parties:

For the Petitioners: Mr. S. T. Hussain, Senior Advocate with Ms. Nida Nazir, Advocate

For the Respondents: Mr. Mohsin-ul-Showkat Qadri, Senior Additional Advocate General with Ms. Nadiya Abdullah, Assisting Counsel

Case Title: Abdul Rehman Bhat v. Union Territory of J&K and Ors.

Case Number: HCP No. 387/2024

Bench: Justice Rahul Bharti

[Read/Download order]