Jammu & Kashmir High Court
Reserved On: 26.02.2026 vs Union Territory Of Jammu And on 6 March, 2026
2026:JKLHC-JMU:693
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 99/2025
Reserved on: 26.02.2026
Date of pronouncement:06.03.2026
Date of uploading:06.03.2026
Whether the operative part or full
judgment is pronounced Full
Shabir Shah, age 22 years ..... Petitioner(s)/Appellant(s)
S/o Bagh Hussain Through his mother
Gulzara Begum age 56 W/o Bagh
Hussain are resident of chamanvas
Banihal District Banihal A/P Malani
Rajpura District Samba.
Through: Mr. Rahoof Khan, Advocate.
q
vs
01.Union Territory of Jammu and ..... Respondent(s)
Kashmir, through Commissioner/Secretary
to Government Home Department Civil
Sect. Jammu.
02.The District Magistrate, Samba.
03.The Senior Superintendent of Police,
Samba.
04.The Superintendent of Central Jail,
Kot Bhalwal, Jammu.
Through: Mr. Bhanu Jasrotia, GA.
CORAM: HON'BLE MR. JUSTICE RAJESH SEKHRI, JUDGE
JUDGMENT
01. Challenge in this petition has been thrown to a detention order No.
04/PSA of 2025 dated 29.05.2025, passed by respondent No. 2-
District Magistrate, Samba, under Section 8 of Public Safety Act,
1978 [“PSA”], vide which petitioner came to be detained.
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02. Background facts of the case are that Senior Superintendent of Police,
Samba, vide his communication dated 26.05.2025, submitted a
dossier regarding illegal activities of the petitioner and recommended
his detention under PSA. It was alleged that petitioner being involved
in a series of criminal activities was a threat to life and liberty of
people.
03. The sponsoring authority recommended detention of the petitioner on
the basis of 05 criminal cases registered against him viz; FIR No.
35/2021 under Section 188 IPC and 11 PCA Act of P.S. Ghagwal,
FIR No. 73/2021 under Section 188 IPC and 11 PCA Act of P.S.
Ghagwal, FIR No. 300/2022 under Section 188 IPC and 11 PCA Act
of P.S. Samba, FIR No. 26/2024 under Section 188 IPC, 11 PCA Act,
03 PDPP, 50/52/54 of Animal Transport Act, 1978 of P.S. Ghagwal
and FIR No. 24/2025 under Section 223 BNS, 11 PCA Act, 03 PDPP
and 50/52/54 Animal Transport Act, 1978 of P.S. Ghagwal.
04. The detaining authority-respondent No. 2 on perusal of the dossier
came to the conclusion that involvement of the petitioner in 05 FIRs
for the offences mentioned therein itself means that he is not afraid of
the legal course of action against him. According to the detaining
authority, petitioner is a habitual offender and incorrigible criminal,
having no fear of law and it was apprehended that there was every
likelihood that activity of the petitioner may lead to disturbance of
public order and tranquillity out of communal tension. The detaining
authority is of the view that petitioner being a habitual bovine
smuggler, his activities tend to hurt religious feelings of a community.
According to respondent No. 2, motive of the petitioner is not only to
create enmity between communities, but to form a deep rooted nexus,
by encouraging criminal minded people of the area to join him in
bovine smuggling in an organized manner in the area. On the basis of
his subjective satisfaction, impugned order came to be passed by the
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detaining authority, whereby petitioner was directed to be detained
and lodged in jail under PSA.
05. The petitioner is aggrieved of the impugned order of detention inter
alia on the following grounds:
(a) That the impugned detention order is bad in the eyes of law.
(b) That, the detention order so passed against the petitioner was not
addressed to detune which shows the callousness and non-
application of mind on the part of the detaining authority on this
ground the detention order is required to be quashed.
(c) That the grounds of detention have not been explained to the
petitioner /detenue in the language which he understands, as he
cannot read and understand the English language, and he can only
understand Urdu language. Hence the impugned order is liable to
be set aside.
(d) That the detaining authority has not supplied all the material
documents to the petitioner including the dossier, so that he can
make effective representative against the order of detention.
Hence the impugned order is liable to be set aside.
(e) It is pertinent to mention here that all these FIRs/cases are based
on false and frivols allegations, out of which two are still under
investigation, further the petitioner is not involved in the above
said FIR referred in the detention order. That as for as the
allegations levelled against the petitioner in the FIRS referred in
the detention order are concerned, the same is mater of trial,
which is still pending before the concerned Court of law, and the
petitioner shall be presumed innocent until proven guilty. Hence
the detention order is liable to be quashed at the earliest.
(f) That petitioner/detenue has been admitted to bail in FIR
No.26/2024 vide order dated 04-03-2024 passed by the Court of
Ld. Additional Special Mobile Magistrate Samba and in FIR
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No.24/2025 vide order dated 15-02-2025 passed by the Court of
Ld. CJM Samba, but the detaining authority has not shown any
awareness of this material fact.
(g) That the fact that the detenue/petitioner is already facing trial and
complying with the bail conditions makes his preventive
detention under the PSA wholly unjustified and unlawful. The
Supreme Court has consistently held that detention under
preventive detention laws cannot be used to subvert the ordinary
law of the land. Once the competent court has granted bail and the
detenue is facing trial, the PSA cannot be invoked to curtail his
personal liberty based on the same set of allegations. This
amounts to a gross violation of the fundamental rights guaranteed
under Articles 21 and 22 of the Constitution of India.
(h) That the detaining authority has passed the detention order
without mentioning any compelling reason for the preventive
detention of the petitioner, when the petitioner was admitted to
bail by the competent Court as aforesaid. The respondents have
not moved any application for cancellation of the bail orders, in
case the petitioner was misusing the concession of the bail, but
straightway the detaining authority has invoked the extraordinary
law to detain the petitioner, when the remedy under ordinary law
is available and despite the fact that the petitioner has not violated
any condition of bail and has fully cooperated with the
investigation agency, still the detaining authority has passed the
detention order in a mechanical manner, which is against the well-
established principal of law.
The Hon’ble apex Court in case titled CRIMINAL
APPEAL NO. 2706 OF 2023 [ARISING OUT OF SLP
(CRIMINAL) NO. 8510 OF 2023] AMEENA BEGUM
versus THE STATE OF TELANGANA & ORS. Held in
para 51 as under:-
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We are of the opinion that the aforesaid excerpts from the
Detention Order lay bare the Commissioner’s attempt to
transgress his jurisdiction and to pass an order of detention,
which cannot be construed as an order validly made under the
Act. The quoted observations are reflective of the intention to
detain the Detenu at any cost without resorting to due
procedure. It is neither the case of the respondents that the
Detenu had not complied with the terms of the notice
issued under section 41-A of the Cr. PC, nor has it been
alleged that the conditions of bail had been violated by the
Detenu. It is pertinent to note that in the three criminal
proceedings where the Detenu had been released on bail,
no applications for cancellation of bail had been moved by
the State. In the light of the same, the provisions of the
Act, which is an extraordinary statute, should not have
been resorted to when ordinary criminal law provided
sufficient means to address the apprehensions leading to
the impugned Detention Order. There may have existed
sufficient grounds to appeal against the bail orders, but
the circumstances did not warrant the circumvention of
ordinary criminal procedure to resort to an extraordinary
measure of the law of preventive detention.
(i).That there is no specific allegation against the petitioner in the
impugned order of detention, even the detaining authority has not
drawn any subjectively satisfaction as aforementioned, and the
impugned detention order has been passed in a very casual and
mechanical manner, without caring about the constitutional as
well as statutory safeguards provided for the protection of rights
of the detenue/petitioner in the Constitution of India as well as in
the PSA, thus it vitiates the detention order in the eyes of law.
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(j) That Article 22(5) of the Constitution mandates that the
detenue must be informed of the grounds of detention as soon as
possible and must be afforded the earliest opportunity to make a
representation against the detention. That in the present case: The
grounds of detention were furnished to the detenue in a vague
and generalized manner, lacking the specific material facts that
justify his detention. The detenue was not provided with
adequate opportunity to make an effective representation before
the detaining authority. The failure to furnish specific grounds
with clear particulars has severely prejudiced the detenue’s
ability to contest the detention. The Supreme Court has held that
non-communication of the relevant facts and failure to provide a
reasonable opportunity to represent against the detention vitiates
the detention order, rendering it unconstitutional and liable to be
quashed.
(k) Preventive detention under the PSA is intended to be an
exceptional measure, employed only when there is a direct and
immediate threat to public order. In the case petitioner/detenue,
the allegations in the FIRs relate to a criminal offense that is
already under trial. The detenue’s actions, if proven, relate to law
and order rather than public order as required by the PSA.
(l) The distinction between public order and law and order has
been clarified in several judicial pronouncements, including Ram
Manohar Lohia v. State of Bihar. The Supreme Court has
emphasized that mere involvement in a criminal case does not
justify preventive detention unless it is established that the
individual’s actions have a serious and immediate impact on
public safety or public order. In the present case, the state has
failed to demonstrate such a direct nexus.
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(m) Even assuming without admitting that there were any
concerns related to public safety, the continued detention of
detenue is wholly disproportionate to any potential threat he may
pose. Given that the detenue is already facing trial and subject to
judicial oversight, preventive detention is an extreme and
unnecessary measure. The courts have repeatedly held that
preventive detention cannot be used as a substitute for the regular
criminal process when less restrictive means is available.
(n) That there is total non-application of mind on the part of
detaining authority, while passing the order of detention.
(o) That the order of detention has been passed in a mechanical
manner and did not meet the requirement of the Public Safety
Act 1978.
(p) The detention order infringes upon the fundamental rights of
the detenue as guaranteed under Article 21 and Article 22 of the
Constitution of India. The preventive detention is based on
grounds that are irrelevant to the object and purpose of the PSA
1978 leading to an arbitrary restriction on the detenue’s personal
liberty without sufficient legal backing.
(q) That the detaining authority has merely acted as a post office
which is unknown to law. In catena of judgments of this Hon’ble
Court and the judgments passed by the Hon’ble Supreme Court,
the detaining authority is required to draw the satisfaction for
passing the detention order and the detention order cannot be a
replica/verbatim of the dossier.
(r) That, the imposition of what is in effect a substantial term of
imprisonment by the exercise of executive discretion without
trial has to be imposed very cautiously.
(s) That the object of detention is not punitive but preventive.
The law of detention is to be strictly construed. Any deviation
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from the laws hampers the rights of the detenue and is violative
of the safeguards provided under Article 22 of the Constitution
of India.
(t) That the petitioner has not created any fear amongst the locals
and is not involved in any activities which can be highly
considered as prejudicial to the maintenance of peace and public
order.
06. The respondents, per contra has opposed the present petition inter
alia on the ground that none of the fundamental, legal or statutory
right of the petitioner has been violated or infringed. The detaining
authority derived subjective satisfaction on the basis of the dossier
submitted by SSP, Samba that petitioner was involved in a number of
criminal cases and his activities were prejudicial to the safety and
security of the public and he was threat to the maintenance of public
order. The petitioner and his father were informed by the detaining
authority about his detention and the grounds on which impugned
detention order was passed.
07. It is also contended that petitioner was provided with the entire
material comprised of total 50 pages including the order of detention
and copy of the dossier against a proper receipt. The contents of the
order and grounds of detention and related documents were read over
and explained to the petitioner in the language which he understood
fully and his signatures as a token of acknowledgement were
received. All the documents were handed over to the petitioner to
enable him to make representation to the government, if he so desired.
It is contention of the respondents that impugned order has been
passed in compliance with the provisions of PSA. The Home
Department, vide communication dated 01.08.2025, has intimated the
detaining authority that after considering the representation dated
28.06.2025 received on behalf of the petitioner, the same was found
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devoid of merit. A copy of the same was endorsed to Superintendent,
Central Jail, Kot Bhalwal, Jammu, to inform the petitioner regarding
disposal of representation.
08. It is contention of the respondents that on perusal of the material
record submitted by SSP, Samba, and application of mind and having
regard to the requirements of law, the detaining authority felt
necessary to detain the petitioner under PSA because he was involved
in repeated criminal activities prejudicial to the safety and security of
the people and threat to the maintenance of public order. Impugned
detention order came to be approved by the Home Department, vide
government order dated 02.06.2025 and was confirmed by it on
27.06.2025. The detenue initially came to be detained for a period of
three months, which was extended from time to time. Respondents
have prayed for dismissal of the petition.
09. Heard arguments and perused the detention record.
10. The petitioner, at the foremost has assailed the impugned order on the
ground that detention order was not addressed to him, the grounds of
detention were not explained to him in the language which he
understands and the detaining authority did not supplied all the
material documents to him including the dossier, so that he could
make an effective representation against his detention.
11. It is categoric stand of the respondents in the counter affidavit that
petitioner was provided with the entire material comprised of total 50
leaves, including the order of detention and copy of the dossier
against a proper receipt. It is also stand of the respondents that
detention order and grounds of detention and related documents were
read over and explained to the petitioner in the language which he
fully understood and his signatures in this respect were obtained. It is
also stand of the respondents that all the documents were handed over
to the petitioner, so as to enable him to make representation to the
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government, if he so desired. A perusal of the detention record bears
testimony to the contention of the respondents that upon execution of
the impugned order, 50 leaves of documents came to be furnished to
the petitioner against proper receipt. The contents of the order and
grounds of detention and related documents are stated to have been
read over and explained to him in the language which he understood
fully and in this respect his signatures were also obtained. The
detention record also reveals that petitioner was informed about his
right to make representation.
12. The petitioner has not filed any rejoinder to refute the clear stand
taken by the respondents in the counter affidavit that entire relevant
material was furnished to him and the detention order and grounds of
detention and related documents were read over and explained to him
in his language, which he fully understood and put his signatures as a
token of acknowledgement. Since respondents in the counter affidavit
have denied allegations of the petitioner that detention order was not
addressed to him, all the material documents including the dossier
were not supplied to him and the grounds of detention were not
explained to him in his language, the petitioner, in the circumstances
was obliged to rebut the stand of the respondents by filing rejoinder
affidavit, but he has not chosen to do so. Therefore, categoric stand of
the respondents that not only the entire material comprised of 50
leaves was provided to the petitioner, but detention order and grounds
of detention and related documents were read over and explained to
him in the language which he understood so as to enable him to make
an effective representation against his detention, remains unrebutted
on the part of the petitioner, which implies that the detaining authority
and the executing officer, in this respect, have complied with the
statutory requirements and obligations on their part.
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13. The next ground urged by the petitioner is that FIRs came to be
registered against him on the basis of false and frivolous allegations.
He was not involved in the said FIRs. He has been admitted to bail in
all the FIRs. According to the petitioner, the very fact that he is facing
trial and complied with the bail conditions makes his preventive
detention under PSA wholly unjustified and unlawful. It is also
contention of the petitioner that preventive detention laws cannot be
used to subvert the ordinary law of the land and detaining authority
has not spelt out any compelling reason for his preventive detention.
14. It is by far a settled proposition of law that preventive detention is a
precautionary measure and this power can be exercised on reasonable
apprehension. It may or may not relate to an offence. The basis of
detention order is the satisfaction of the detaining authority with
respect to reasonable probability of the detenue indulging in activities
similar to his past conduct. In the present case, the sponsoring
authority recommended detention of the petitioner on the basis of 05
criminal cases registered against him. It was alleged in the dossier
submitted by SSP, Samba that petitioner being a habitual bovine
smuggler, his activities tend to hurt religious feeling of a particular
community. The detaining authority, on the perusal of the dossier has
come to the conclusion that involvement of the petitioner in 5 FIRs,
itself means that he is not afraid of the legal course of action against
him and his motive is not only to create enmity between the
communities but to form a deep rooted nexus by encouraging
criminal minded people of the area to join him in bovine smuggling in
an organised manner. Therefore, taking a wholesome view of
repeated anti-social activities of the petitioner, the detaining authority
found it imperative to detain him, with a view to prevent him from
indulging in similar activities.
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15. It needs a specific mention here that out of 5 criminal cases registered
against the petitioner, he confessed his guilt in 3 cases, whereby he
came to be convicted and fined by the competent Courts. Therefore,
contention of the petitioner that he was involved in the FIRs on the
basis of false and frivolous allegations is misconceived.
16. A five judge bench of Hon’ble Supreme Court in Haradhan Saha vs.
State of West Bengal & Ors; (1975) 3 SCC 198, in a similar fact
situation, has held that preventive detention has nothing to do with the
commission of an offence by the detenu or any prosecution against
him. It is clearly ruled by the Apex Court that preventive detention
can be ordered before or during the prosecution and even with or
without prosecution of a criminal case against the detenu. It can be
made in anticipation. Preventive detention can be ordered even after
discharge or acquittal of an accused. The position of law crystallized
in Haradhan Saha is that pendency of a criminal case is no bar to
order preventive detention and Article 14, in such cases, is
inapplicable because preventive detention and prosecution are not
synonymous.
Relevant excerpt captured in Paras 32 to 34 of the judgment for the
ease of reference is extracted below:-
“32. The power of preventive detention is qualitatively different from
punitive detention. The power of preventive detention is a
precautionary power exercised in reasonable anticipation. It may or
may not relate to an offence. It is not a parallel proceeding. It does
not overlap with prosecution even if it relies on certain facts for
which prosecution may be launched or may have been launched. An
order of preventive detention may be, made before or during
prosecution. An order of preventive detention may be made with or
without prosecution and in anticipation or after discharge or even
acquittal. The pendency of prosecution is no bar to an order of
preventive detention. An order of preventive detention is also not a
bar to prosecution.
33. Article 14 is inapplicable because preventive detention and
prosecution are not synonymous. The purposes are different. The
authorities are different. The nature of proceedings is different. In a
prosecution an accused is sought to be punished for a past act. InHCP No. 99/2025 Page No. 12
2026:JKLHC-JMU:693preventive detention, the past act is merely the material for inference
about the future course of probable conduct on the part of the detenu.
34. The recent decisions of this Court on this subject are many. The
decisions in Borjahan Gorey v. State of W. B., Ashim Kumar Ray V.
State of W. B.; Abdul Aziz V. District Magistrate, Burdwan and Debu
Mahato V. State of W. B. correctly lay down the principles to be
followed as to whether a detention order is valid or not. The decision
in Biram Chand v. State of U. P. which is a Division Bench decision
of two learned Judges is contrary to the other Bench decisions
consisting in each case of three learned Judges. The principles which
can be broadly stated are these. First, merely because a detenu is
liable to be tried in a criminal court for the commission of a criminal
offence or to be proceeded against for preventing him from
committing offences dealt with in Chapter VIII of the Code of
Criminal Procedure would not by itself debar the Government from
taking action for his detention under the Act. Second, the fact that
the Police arrests a person and later on enlarges him on bail and
initiates steps to prosecute him under the Code of Criminal
Procedure and even lodges a first information report may be no bar
against the District Magistrate issuing an order under the preventive
detention. Third, where the concerned person is actually in jail
custody at the time when an order of detention is passed against him
and is not likely to be released for a fair length of time, it may be
possible to contend that there could be no satisfaction on the part of
the detaining authority as to the likelihood of such a person
indulging in activities which would jeopardise the security of the
State or the public order. Fourth, the mere circumstance that a
detention order is passed during the pendency of the prosecution will
not violate the order. Fifth, the order of detention is a precautionary
measure. It is based on a reasonable prognosis of the future
behaviour of a person based on his past conduct in the light of the
surrounding circumstances.”
17. Pertinently, a similar view was expressed earlier by another
constitutional Bench of Hon’ble Supreme Court in the State of
Bombay vs. Atma Ram Shridhar Vaidya; AIR 1951 SC 157.
18. An identical view has been taken by Supreme Court in Naresh
Kumar Goyal vs. Union of India; (2005) 8 SCC 276:- wherein it was
observed as under
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“It is trite law that an order of detention is not a curative or reformative
or punitive action, but a preventive action, avowed object of which being
to prevent the anti-social and subversive elements from imperiling the
welfare of the country or the security of the nation or from disturbing
the public tranquility or from indulging in smuggling activities or from
engaging in illicit traffic in narcotic drugs and psychotropic substances
etc. Preventive Detention is devised to afford protection to society. The
authorities on the subject have consistently taken the view that
preventive detention is devised to afford protection to society. The object
is not to punish a man for having done something but to intercept before
he does it, and to prevent him from doing so.”
19. The aforesaid enunciation came to be reiterated with approval by the
Apex Court in Union of India vs. Dimply Happy Dhakad; AIR
2019 SC 3248.
20. It is evident from the afore-quoted observations of Hon’ble Supreme
Court that pendency of prosecution against a detenu is no bar for the
detaining authority to pass an order of preventive detention, and even
discharge or acquittal of the detenu in a criminal case against him
does not preclude the detaining authority from invoking precautionary
jurisdiction under preventive detention laws. Therefore, contention of
learned counsel for the petitioner that criminal prosecution could not
be circumvented or subverted by resort to preventive detention is
legally flawed for the simple reason that purpose of preventive
detention is different from criminal prosecution. Discharge or
acquittal or grant of bail to a detenu operates in a different fields. In a
criminal prosecution, it is proof beyond reasonable doubt which is a
paramount consideration, whereas in cases of preventive detention,
what is necessary is subjective satisfaction of the detaining authority
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that ordinary law of the land had failed to prevent and deter the
detenu from indulging in similar activities. In preventive detention
cases, the past act of the detenu serves as a material for drawing an
inference about the future course of his probable conduct, as held by
the Apex Court in Haradhan Saha. Therefore, preventive detention
of a detenu cannot be held illegal merely because detenu has been
bailed out in criminal cases against him and prosecution failed to
move the concerned court for cancellation of his bail. If the object of
detention is to prevent a habitual offender from re-offending in future,
which may tend to create a law and order problem or disturb the
public order and communal harmony, resort to preventive detention is
perfectly justified.
21. The next ground urged by the petitioner is that the detaining authority
has merely acted as a post office, which is unknown to law and it has
not drawn subjective satisfaction. According to the petitioner, the
impugned detention order being passed by the detaining authority in a
casual and mechanical manner, without caring about his constitutional
and subjective safeguards, is liable to be revoked.
22. The reference to 5 FIRs registered against the petitioner, out of which
he has been convicted in 3 FIRs, with a clear detail to his past
activities in the dossier as also in the ground of detention, infact
reflects manifest awareness and application of mind on the part of the
detaining authority before it proceeded to pass the impugned order. It
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is apparent from the detention record and a perusal of the grounds of
detention that detaining authority embarked upon to issue the
impugned order on reasonable prognosis of the future behaviour of
the petitioner based on his past conduct and attending circumstances.
23. Be that as it may, it is trite that high Court has a very limited scope to
examine the grounds of detention and the sufficiency of material,
relied by the detaining authority, in exercise of its writ jurisdiction.
The high Court cannot sit in appeal and find fault with the subjective
satisfaction derived by the detaining authority or substitute its own
opinion when the grounds of detention are found precise, pertinent
and proximate.
24. It is exclusive domain of the administration to ensure the maintenance
of public order, peace and tranquility. Therefore, subjective
satisfaction drawn by the detaining authority that ordinary law of the
land has not proved sufficient to deter the detenue from indulging in
anti-social activities time and again is not open to objective scrutiny
by the high Court in exercise of its writ jurisdiction.
25. The next ground urged by the petitioner in the petition is that he was
not provided with adequate opportunity to make an effective
representation before the detaining authority. A perusal of the record,
however reveals that petitioner has filed a representation dated
28.06.2025, which was duly considered by the Department of Home
and it was found devoid of merit. The Home Department vide
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communication dated 01.08.2025, intimated to the detaining authority
with a copy to the superintendent of the concerned jail to inform the
petitioner in this respect.
26. For the foregoing reasons, I do not find any illegality or infirmity in
the impugned order. The grounds of detention, on the basis of which
detention order came to be passed, are found unambiguous. The
petitioner has been informed about the grounds of detention in the
language which he fully understood. What weighed with the detaining
authority while passing the impugned order was past activities of the
petitioner and, his conviction in three cases on the basis of which the
detaining authority came to the conclusion that petitioner was
required to be placed under preventive detention in order to prevent
him from indulging in similar activities.
27. For the foregoing reasons, present petition is dismissed and
impugned order is upheld.
(Rajesh Sekhri)
Judge
Jammu
06.03.2026
Sushant
Whether the judgment is speaking? Yes
Whether the judgment is reportable? Yes
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