SHABIR AHMAD RATHER vs UNION TERRITORY OF J AND K AND ORS. (HOME)

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR




HCP No. 48/2025




Pronounced on: 30.06.2026



Shabir Ahmad Rather
…Petitioner(s)

Through: Mr. Zahid Khan, Advocate

Vs.

Union Territory of J&K and Ors.
...Respondent(s)
Through: Mr. Furqan Sofi, Government Advocate
CORAM:
HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE


JUDGMENT

1. Heard learned counsel for the petitioner as well
as learned counsel for the respondents.
2.
Perused the writ pleadings and the documents
therewith. Also perused the detention record.
3. Petitioner-Shabir Ahmad Rather acting through
his brother Sajad Ahmad Rather instituted the present
writ petition on 10.03.2025 after he had come to
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suffer preventive detention custody under Jammu and
Kashmir Public Safety Act, 1978 and, thus, sought
restoration of his personal liberty through the medium
of writ of habeas corpus under article 226 of the
Constitution of India.
4. Case for preventive detention of the petitioner
originated from the Senior Superintendent of Police
(SSP) Awantipora, who, vide his letter No.
Conf/PSA/2024/238-41 dated 30.08.2024,
submitted a dossier to the respondent No.2-District
Magistrate, Pulwama, reporting the alleged state of
activities of the petitioner purportedly prejudicial to
the security of the State and warranting preventive
detention of the petitioner.
5. Acting on said dossier, the respondent No.2-
District Magistrate, Pulwama formulated grounds of
detention in which the petitioner has been referred to
as a hardcore Over Ground Worker (OGW) of the
terrorist organization Jaish-e-Mohammad (JeM), object
of which is to secede UT of J&K from the Union of
India and annex it with Pakistan. The petitioner is
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alleged to have been rendering assistance to the
terrorists as such facilitating their movement with
weapons through unconventional passages.
6. By reference to said context, an incident of
24.05.2022 is finding mention in the grounds of
detention in which an OGW network is claimed to have
been busted by a Police component of Tral during
course of interrogation of the terrorists apprehended in
the said operation disclosure of names of Ishfaq
Ahmad Dar, Manzoor Ahmad Dar coming forth. It,
thus, came to be divulged that two were in a close
contact with the active terrorists namely Asif Ahmad
Sheikh and Aijaz Ahmad Bhat of JeM who were
eliminated during an encounter with Security Forces
which took place on 28.02.2023 at Padgampora
Awantipora.
7. An incident relatable to a terrorist activity by
one OGW-Ishfaq Ahmad Dar also finds mention in the
grounds of detention with respect to petitioner who, as
is being reiterated, was working as an active OGW and
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was in close contact with Asif Ahmad Sheikh and his
associates.
8. Criminal involvement of the petitioner is said to
have resulted in FIR No. 76 of 2022 of Police Station
Tral in which the petitioner came to be arrested and
booked for the trial. The petitioner is said to have been
enlarged on bail by the competent criminal court of
law but despite that the petitioner is said to have been
continuing with his subversive activities by re-
establishing his contact with local terrorist Asif Ahamd
Sheikh.
9. It is in the aforesaid scenario projected in the
grounds of detention that respondent No.2-District
Magistrate, Pulwama reckoned the petitioner’s alleged
activities to be prejudicial to the security of State,
thus, paving way for issuance of detention order
No. 30/DMP/PSA/24 dated 04.09.2024 ordering the
detention of the petitioner and his confinement in
Central Jail Jammu (Kotbhalwal).
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10. Upon issuance of aforesaid detention order, the
arrest and detention of the petitioner came to take
place on 06.09.2024 when SI-Farooq Ahmad No.
216/CID (EXK-961424) of Police Station Tral had
carried out the execution of the detention warrant in
the process handing over a compilation of 36 leaves to
the petitioner which included detention order, notice of
detention, grounds of detention, dossier of detention
and other attending documents. The petitioner is said
to have been explained order of detention, notice of
detention and grounds of detention in the language
that was fully understood by him.
11. By virtue of a Government Order No.
Home/PB-V/1765 of 2024 09.09.2024
dated ,
approval to the detention order No. 30/DMP/PSA/24
dated 04.09.2024 came to be granted and the case
forwarded for the opinion of the Advisory Board which
came to be tendered in the form of Opinion Report
dated 26.09.2024 , whereby the Advisory Board held
the preventive detention of the petitioner to be on
justifiable grounds.
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12. Acting on the basis of the Advisory Board’s
opinion, the confirmation of the petitioner’s preventive
detention came to be accorded by virtue of a
Government Order No. Home/PB-V/1885 of 2024
dated 03.10.2024 with period of detention at first
instance fixed from 06.09.2024 till 05.03.2025 which
later on came to be extended from time to time and
petitioner is now serving last phase of maximum
detention period in the course of which this writ
petition come up for hearing with its adjudication
purpose.
13. The petitioner in his writ petition has assailed
his preventive detention custody on the grounds as set
out in para 4 (I) to (IX).
14. The petitioner submits that the entire exercise
starting from the generation of the dossier and ending
with the passing of the detention order against the
petitioner was without awareness of the fact that the
petitioner was on bail in connection with criminal
case/s and petitioner had not breached any terms and
conditions of the bail order/s and still the petitioner
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came to be picked up for being subjected to preventive
detention custody actuated with a punitive mind set
operating at the end of the District Police Awantipora
and supplemented by respondent No.2-District
Magistrate, Pulwama. The petitioner assails the
grounds of detention as being a mirror image of the
dossier which demonstrates a total non-application of
mind on the part of respondent No.2-District
Magistrate, Pulwama who simply acted as a passive
recipient of the dossier and lend to it legitimacy by
mere renaming it as Grounds of detention so as to
pass detention order in a mechanical motion of
course/routine. The Learned Counsel for the petitioner
further argued that he would not have been granted
bail by the ordinary criminal court of law without
having due concern to the merits of the case and thus
the basis for subjecting the petitioner to preventive
detention custody pressed into service is more by
scandalizing the alleged fact of the petitioner’s
association with the alleged terrorists Asif Ahmad
Sheikh and Aijaz Ahmad Bhat. The petitioner has
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further alleged that he was not provided with copy of
the detention order including the dossier and grounds
of detention and that he was never made to
understand the contents of the documents handed
over to him including the notice of the detention order
and the grounds of detention, rendering the entire
exercise illegal in the face of the judgement of the
Hon’ble Supreme Court of India in Lallubhai Jogibhai
Patel vs. Union of India and Ors, 1981(2) SCC 427 .
15. The major thrust of the petitioner’s challenge is
that there is no proximate link between the grounds of
detention and the alleged prejudicial activities of the
petitioner.
16. The respondents led by the respondent No.2 in
their counter affidavit have come forward defending
the course of action leading to the preventive detention
of the petitioner by emphasizing that all procedural
formalities were done meticulously and, therefore, the
petitioner cannot be heard to agitate against his
detention.
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17. When this Court evaluates the facts and
circumstances of the case in light of the detention
record produced, this Court cannot resist from
concurring with the plea of the petitioner’s counsel
that the imposition of preventive detention custody
upon the petitioner is more of a vindictive nature
rather than for the purpose as meant to be portrayed.
The petitioner is right in saying that while being on
bail in a serious case without having indulged in any
act of breach of terms and conditions of bail, acting
just on the mere ipse dixit of the Senior
Superintendent of Police (SSP), Awantipora that the
petitioner is not desisting from carrying out subversive
activities re-establishing contact with a terrorist
named Asif Ahmad Sheikh and clandestinely working
with the terrorist in such a manner as to leave no
scope for security forces /police to ascertain evidence
to book the petitioner under normal laws, is literally a
draconian like situation for any citizen to suffer having
nothing at his or her disposal to defend against such
types of vague and wild impressions and assumptions
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of District Police. This Court cannot lend its
acceptance that mere opinion given fact colouration
can form a basis for subjecting a person to preventive
detention custody under J&K Public Safety Act. There
has to be some hardcore reportable and demonstrable
factual content to sustain the suspicion of the District
Police that a particular individual in terms of his/her
activity/ies is prejudicial to the security of the State.
In the absence of that material, a simpliciter self
entertained opinion resting purely on doubt cannot
afford basis for subjecting a person to preventive
detention custody and this is exactly what has
happened in the present case. Therefore, this Court is
inclined to accept the present writ petition. Detention
Order No. 30/DMP/PSA/24 dated 04.09.2024 read
with the approval/ confirmation/extension orders
passed by the respondent No.1 with respect to
preventive detention of the petitioner are hereby
quashed.
18. The petitioner is directed to be released from
his preventive detention custody from the concerned
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Jail wherever the petitioner is being detained and the
Superintendent of the concerned Jail shall release the
petitioner forthwith.
(RAHUL BHARTI)
JUDGE
SRINAGAR :
30.06 .2026
“ Manzoor ”

Whether the judgment is speaking : Yes / No
Whether the judgment is reportable : Yes / No
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