Umer Rashid Dar v. Union Territory of J and K and Ors. (Home)

JU D GM EN T

¶1Heard learned counsel for petitioner as well as for respondents. Perused the respective side pleadings and the documents accompanied therewith. Also perused the detention record produced from the end of the respondents.

¶2The petitioner-Umer Rashid Dar is seeking this Court to exercise writ jurisdiction under Article 226 of the

Constitution of India to quash his preventive detention custody and restore him to his personal liberty otherwise lost because of his detention effected under the J&K Public Safety Act. 1978.

¶3The institution of the writ petition came to take place on 06.05.2025 with the petitioner acting through his father-Ab Rashid Dar in maintaining the present writ petition.

¶4The petitioner is 25 years of age against whom the respondent No.3-Senior Superintendent of Police

(SSP), Pulwama prepared a dossier thereby documenting alleged adverse activities of the petitioner found to be prejudicial to the security of the State warranting his preventive detention under the J&K Public Safety Act, 1978.

¶5The respondent No.3-Senior Superintendent of Police

(SSP), Pulwama, vide his letter No. CS/PSA/2025/6032 dated

28.04.2025, had forwarded the dossier to respondent No.2-District Magistrate, Pulwama seeking him to act and exercise his jurisdiction.

¶6Acting on said dossier, the respondent No.2-District Magistrate, Pulwama formulated the purported grounds of detention to draw a subjective satisfaction there-from that the alleged reported activities of the petitioner were fit enough to subject him to suffer preventive detention custody so as to prevent him from acting in a manner prejudicial to the security of the State and for that purpose invoked the J&K Public Safety Act, 1978 to pass detention order No.13/DMP/PSA/25

dated 30.04.2025 thereby ordering the detention and confinement of petitioner in District Jail, Udhampur for a period to be specified by Government.

¶7In grounds of detention, petitioner came to be referred as 9th Pass school dropout who came in contact with the terrorists under whose influence he agreed to carry out subversive activities in the area. The petitioner is referred to have been sharing prior information with the active terrorists before the CASOs of the adjoining area of Drabgam with the help of B.B.M (Black Berry Messenger) Mobile application enabling them to escape.

¶8The petitioner is alleged to have been arrested in year 2020 at Drabgam-Shadimarg Road being in alleged

possession of two Chinese grenades leading to registration of FIR No.29/2020 under Sections I.A.Act and Section 23 ULA(P) Act by the Police Station, Rajpora but getting bailed out on 15.10.2020.

¶9The alleged implication of the petitioner in the aforesaid criminal case is said to have brought him under surveillance of the Police wherefrom it came to be found out that the petitioner has been secretly maintaining contacts with active terrorists for rendering them services for their sustenance in the area by providing logistic support to the local and foreign terrorists just to facilitate their movement from one place to another through unconventional passages and conceal their arms at remote destinations. The petitioner is alleged to have been providing shelter,

food and information about movement of the Security Forces in the area to the terrorists.

¶10The alleged objectionable activities read and reckoned to be of serious nature are said to have brought the petitioner to preventive measures under Section 126/170 BNSS on 11.01.2025 by the Police Station, Rajpora but the petitioner is alleged to have been still working as 'OGW' carrying on with his alleged old state of activities thereby making him a case to suffer preventive detention.

¶11The grounds of detention so texted is a clone of the dossier submitted by respondent No.3-Senior Superintendent of Police

(SSP), Pulwama.

¶12Pursuant to the detention order so issued against the petitioner, he is said

to have been taken into custody on

01.05.2025 by SI Mohd Yousuf No. 911597/EXK of DPL, Pulwama and handed over to the Superintendent, District Jail, Udhampur.

¶13The report of execution of the detention warrant purportedly certifying the fact of detention of the petitioner taking place on 01.05.2025 reads that the petitioner was handed over with notice of the order and the entire material /relevant documents, besides being explained to him in the language i.e. Urdu/Kashmiri. A proper receipt is said to have been taken from the petitioner, a perusal whereof would show that while the month and the year are mentioned therein but the date is finding omission in one receipt but another receipt bearing hand inserted date.

¶14The petitioner is said to have received the following documents in compilation of 12 (twelve) leaves: i. Copy of warrant-01 leaf; ii. Notice of detention-01 leaf; iii. Grounds of detention-02 leaves; iv. Dossier of detention-02 leaves; v. Copy of FIR-02 leaves; vi. Copy of Istegasa-03 leaves; vii. Beat Report-01 leaf.

¶15The detention order No.13/DMP/PSA/25 dated

30.04.2025 issued by the respondent No.2-District Magistrate, Pulwama came to be approved by Government of UT of J&K through its Home Department by issuance of Government Order No. Home/PB-V/878 of 2025 dated 08.05.2025 with forwarding of the case to the Advisory Board for its opinion taking place.

¶16The Jammu & Kashmir Advisory Board came to forward its opinion report dated 20.05.2025 on File No. Home/PB-V/208/2025 holding preventive detention of the petitioner resting upon justifiable grounds and meeting all the procedural compliances. In its opinion report, the Advisory Board came to refer that the activities of the petitioner as spelled out from the contents of the FIR, statements of prosecution witnesses and confidential report appended with the record demonstrated that the petitioner despite being implicated in the case under FIR No. 29/2020 had not mended his ways and was still inclined towards anti-national activities.

¶17The Advisory Board makes a reference in its opinion report that there is no representation from the end of the

petitioner against his preventive detention and that constitutes rebuttal from the end of the petitioner to grounds of detention as otherwise the grounds of detention are well-founded.

¶18The Advisory Board's opinion report dated

20.05.2025 paved way for issuance of Government Order No. Home/PB-V/1025 of 2025 dated

23.05.2025 thereby confirming the original preventive detention order No. 13/DMP/PSA/25 dated 30.04.2025 of respondent No.2-District Magistrate, Pulwama and directing the period of detention of the petitioner for six months at the first instance i.e. with effect from

01.05.2025 till

31.10.2025.

¶19In his writ petition, the petitioner has assailed the preventive detention on

the grounds as set out in Para 5(I) to

(XVI).

¶20The petitioner challenges his preventive detention being based upon vague and mere assertions and assumptions of the Detaining Authority with the grounds of detention bearing no nexus with the petitioner but all fabricated by the Police to justify submission of a case for preventive detention of the petitioner.

¶21The petitioner also challenges that while it has been alleged in the dossier as well as in the grounds of detention that the petitioner was found hatching a conspiracy for snatching a weapon from Security Force/Police Personnel with intent to formally join terrorism but the name of the Security Force/Police Personnel from whom the alleged weapon snatching attempt was

being conceived by the petitioner has not been disclosed. It is further stated in the grounds of detention that the date and place of the alleged intent of the petitioner to snatch a weapon from the Security Force/ Police Personnel is nowhere whispered.

¶22The petitioner further refers to the fact that previously also he was subjected to the preventive detention by reference to detention order No.33/DMP/PSA/20 dated

31.10.2020 passed by the respondent No.2-District Magistrate, Pulwama which came to be questioned by him in a writ petition WP(Crl) No.170/2020 which came to suffer quashment in terms of judgment dated

16.11.2020 thereby restoring petitioner to his personal liberty after almost one year of preventive detention

but only again to be brought back under preventive detention custody by virtue of present detention order again passed by the respondent No.2-District Magistrate, Pulwama without any change of situation obtaining whatsoever between first detention order and the second detention order both of which bear common reference to FIR No.29/2020 which is reflective of the fact that the respondent No.3-Senior Superintendent of Police (SSP), Pulwama and respondent No.2-District Magistrate, Pulwama are actually acting on the stale pretext in branding the petitioner in an adverse manner so as to keep him suffer repetitive preventive detention.

¶23The counter affidavit to writ petition came to be submitted on

23.07.2025 from end of Dr.

Basharat Qayoom, the then incumbent District Magistrate, Pulwama, who incidentally is also author of the impugned detention order although detention order per se does not bear mention of his name as District Magistrate under whose signature passing of detention order has come to take place.

¶24In the counter affidavit, it is being stated that the preventive detention imposed upon the petitioner is for justifiable grounds with due compliance to the procedural formalities and in consonance with the position of law settled by the Hon'ble Supreme Court of India in the case of (i) Haradhan Saha vs. State of West Bengal (1975) 3 SCC 198; (ii) Secretary to Government, Pubic (Law and Order) & Anr. Vs. Nabila & Anr. (2015) 12 SCC 127; (iii)

Debu Mahato Vs. State, 1974 AIR SC 816; (iv) Ashok Kumar Vs. Delhi Administration & Ors., AIR 1982 SC 1143.

¶25The respondents in their counter affidavit have laid emphasis on the fact of previous detention of the petitioner as well as his implication in a criminal case borne out of FIR No.29/2020.

¶26When this Court examines the basis of the grounds of detention wherefrom the respondent No.2-District Magistrate, Pulwama came to draw his purported subjective satisfaction obviously the period to be reckoned is post petitioner's release from first preventive detention custody pursuant to the judgment of this Court in WP(Crl) No.170/2020 as otherwise relegating back to the scenario, would be seriously prejudicing the petitioner that the

alleged state of activities on the basis of which he was detained pursuant to the detention order No. No.33/DMP/PSA/20 dated

31.10.2020 passed by the respondent No.2-District Magistrate, Pulwama, he has again come to be brought under preventive detention custody second time by virtue of impugned detention order.

¶27Therefore, when this Court examines the grounds of detention, there is found to be a very intriguing silence on part of the respondent No.3-Senior Superintendent of Police (SSP), Pulwama with respect to making mention of petitioner's earlier detention effected in terms of detention order No. No.33/DMP/PSA/20 dated

31.10.2020, whereas on the contrary reference to FIR No.29/2020 stands

mentioned in bold letters meaning thereby the respondent No.3-Senior Superintendent of Police

(SSP), Pulwama was well conscious of fact that if a recital as to fact of the previous detention of the petitioner would be made in dossier, then recommendation for subjecting petitioner to preventive detention custody might not find favour from the end of the respondent No.2-District Magistrate, Pulwama.

¶28Thus, the respondent No.3-Senior Superintendent of Police

(SSP), Pulwama fed the respondent No.2-District Magistrate, Pulwama with half backed factual inputs with a malice in law if not on fact.

¶29This singular omission on the part of respondent No.3-Senior Superintendent of Police

(SSP),

Pulwama resulted in infesting very exercise of jurisdiction under the J&K Public Safety Act, 1978 by respondent No.2-Distirct Magistrate, Pulwama with an illegality which is incurable and therefore, renders very preventive detention of the petitioner illegal and an abuse of law warranting to be quashed.

¶30Accordingly, present writ petition is allowed. Preventive detention Order No. No.13/DMP/PSA/25 dated

30.04.2025 passed by the respondent No.2-District Magistrate, Pulwama read with approval/confirmation/extension order(s) passed by Home Department, Government of UT of J&K under the J&K Public Safety Act, 1978 are hereby quashed with immediate effect. The petitioner is ordered to be restored to his personal liberty by his

release from the concerned Jail for which the Superintendent concerned to carry out the compliance.

¶31Disposed of, as such.

(RAHUL BHARTI) JUDGE Srinagar

31.03.2026

Muzammil Q

Whether the judgment is speaking : Yes / No

Whether the judgment is reportable : Yes / No

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 29.01.2026 Pronounced on: 31.03.2026 HCP No. 84/2025 Umer Rashid Dar …..Petitioners Through: Mr. G.N.Shaheen, Advocate with Mr. Asif Nabi, Advocate. Vs. Union Territory of J&K and others .….Respondents Through: Mr. Furkan Yaqoob Sofi, GA. Coram : HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE