The Court observed that the detaining authority had failed to show any subversive activity attributed to the detainee which compelled them to take recourse to preventive detention.

The Court was hearing a habeas corpus petition filed by the paternal uncle of the detenue, Shafat Maqbool Wani, challenging detention order issued by the District Magistrate, Kupwara, placing the detenue under preventive detention to prevent him from indulging in activities detrimental to the security of the State.

A Bench of Justice Moksha Khajuria Kazmi, while allowing the petition, observed,

"The respondents have not shown any subversive activity against the name of petitioner/detenue which compelled them to take recourse to preventive detention. The alleged anti-national literature shown to have been seized from the detenue has also presumably weighed with the respondents to brand the detenue as an anti-national, however, the said literature has wrongly been attributed to the detenue having been authored by him."

The Court further observed,

"The learned counsel for the petitioner is quite justified in submitting that the petitioner, being an academic scholar, is expected to be in possession of variety of literary means, therefore, a mere possession of the books with dispiriting titles does not ipso facto make the petitioner/detenue a criminal against whom the preventive detention was required to be invoked."

The detenue was placed under preventive detention on the ground that the detenue was brought up in a family having separatist ideology, with his father being an ex-militant who surrendered in 1990. It was further stated that the detenue had received invitations for attending international conferences at Columbia University and Dublin City University, and was involved in FIR under Sections 13, 17, 18 of the UAP Act.

The grounds also reflected that anti-national literature was seized from the possession of the detenue, including a book authored by him titled "Construction of an Islamic Order in Hindutva reimagination" and "The safronization of occupied Kashmir, Demystifying Hindutva Settlers, Colonial Designers". The detenue had been granted bail by the Special Judge, NIA, Jammu, after the agency's application for extension of remand beyond 155 days was rejected.

The petitioner contended that there was non-application of mind on the part of the detaining authority, as the authority acted mechanically by relying solely upon the FIR in which the detenue was already bailed out. It was further contended that the grounds of detention were vague and non-existent, and there were no compelling reasons for the detention.

Court's Observations:

Justice Kazmi examined the grounds of detention and the counter affidavit filed by the respondents. The Court found that the detaining authority did not appear to have made any effort to derive satisfaction as regards the prejudicial activity of the detenue warranting his preventive detention.

The Court observed,

"The respondents have reflected in the counter affidavit as also in the grounds of detention that the detenue had been granted bail, therefore, they have not been oblivious to this fact, however, at the same time, it can very safely be said that the detaining authority does not appear to have made any effort to derive satisfaction as regards the prejudicial activity of the petitioner/detenue warranting his preventive detention."

The Court noted that the detaining authority had relied upon the FIR in which the detenue was already granted bail by a competent court. The Court observed,

"There has been non-application of mind on the part of the detaining authority in detaining the detenue."

The Court relied upon Ameena Begum v. State of Telangana (2023) 9 SCC 587, wherein the Supreme Court laid down the principles for determining the validity of detention orders, including that the detaining authority must apply its mind to all relevant circumstances and that the grounds must be precise, pertinent and relevant, giving the detenu an opportunity to make a suitable representation.

The Court observed,

"The only thing that emerges from the perusal of the grounds of detention, and the counter affidavit... is that the detenue has inculcated a separatist ideology since his childhood, for, his father has been an ex militant having surrendered in the year 1990. The said fact by no stretch of imagination can be termed as a prejudicial activity attributed to the detenue."

The Court noted that the respondents had not shown any subversive activity against the detenue which compelled them to take recourse to preventive detention. The Court observed, "The respondents have not shown any subversive activity against the name of petitioner/detenue which compelled them to take recourse to preventive detention."

Significantly, the Court found that the anti-national literature was wrongly attributed to the detenue as having been authored by him. The Court observed,

"The alleged anti-national literature shown to have been seized from the detenue has also presumably weighed with the respondents to brand the detenue as an anti-national, however, the said literature has wrongly been attributed to the detenue having been authored by him."

The Court held that being an academic scholar, the detenue was expected to be in possession of a variety of literary means. The Court observed that the petitioner, being an academic scholar, is expected to be in possession of variety of literary means, therefore, a mere possession of the books with dispiriting titles does not ipso facto make the petitioner/detenue a criminal against whom the preventive detention was required to be invoked.

In view of these findings the Court allowed the habeas corpus petition, quashed the impugned detention order, and directed the release of the detenue from preventive custody forthwith.

Case Title: Shafat Maqbool Wani (through paternal uncle) v. UT of J&K and Others

Citation: 2026 LiveLaw (JKL) 380

Appearances

Petitioner: Mr. Zahid Hussain Dar, Advocate

Respondents: Mr. Faheem Nisar Shah, Government Advocate

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