Jammu & Kashmir High Court
Mohd Shakoor vs Ut Of Jammu And Kashmir Through … on 12 March, 2026
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on: 12.03.2026
Uploaded on : 16.03.2026
Case No.:- HCP No. 89/25
Mohd Shakoor
s/o Fateh Mohd
r/o Saroola,Tehsil Manjakote,
District Rajouri
At present lodged in central jail Kot Bhalwal
Through his father Feteh Mohd
s/o Umar din r/o Saroola,Tehsil Manjakote
District Rajoura.
.Petitioner(s)
Through: Mr. Waheed Chourdhary, adv.
Vs
1. UT of Jammu and Kashmir through Principal Secretary
Home Department, Civil Sectt.Jammu/Srinagar.
2. District Magistrate, Rajouri.
3. Senior Superintendent of Police Rajouri,
4. Senior Superintendent of Police, Bandipora
5. Superintendent Central Jail, Central Jail Kot Bhalwal, Jammu.
Respondent(s)
Through :Mr. Deewaker Shamra, Dy AG
Coram:
HON'BLE MR. JUSTICE MOHD.YOUSUF WANI, JUDGE
JUDGMENT
12.03.2026
1. Impugned in the instant petition, filed under the provisions of Article 226 of
the Constitution of India, by the petitioner through his father, is the order of
Detention bearing No. DMR/PSA/07 of 2025 dated 22.05.2025 passed by the
respondent No.2 i.e. District Magistrate, Rajouri (hereinafter referred to as the
“detaining authority”, for short), while invoking his powers under Section 8(1)
(a) (i) of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter referred to
as the “Act”, for short), whereby the petitioner/detenu has been ordered to be
detained with a view to prevent him from acting in any manner prejudicial to the
maintenance of public order and lodged in Central Jail, Kot Bhalwal, Jammu.
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2. The petitioner has sought the issuance of the writs of certiorari and
mandamus for quashment of the impugned detention order and his immediate
release from the alleged unlawful detention.
3. The petitioner has assailed the impugned detention order on the grounds
inter alia that he is a citizen of India and a domicile of UT of Jammu and
Kashmir residing at Village Saroola Tehsil Manjakote District Rajouri; that he
was actually called by the police station Manjakote on 14.05.2025 and was
detained in the police station without disclosing any reason for his detention; that
he was subsequently shifted to Central Jail Kot Balwal Jammu on 17.05.2025
thereafter his father approached the respondents who provided him a photocopy
of the impugned order on 22.05.2025; that he was not provided documents of the
detention order in entirety thus disabling him to make an effective representation
in respect of his illegal detention well in time; that the impugned detention order
has been based on his alleged involvement in five case FIR’s bearing No’s
18/2006, under section 498A 34 RPC FIR no. 86/2008 under sections 498A, 313
RPC FIR No. 64/2015 under sections 354, 323 RPC FIR NO. 67/2023 under
sections 188 IPC, 11 PCA Act and FIR NO. 349/2023 under Sections 188 IPC,
11 PCA Act all of PS Manjakote in which the first three mentioned case FIR
No’s pertained to the matrimonial dispute with his wife and all the three Cases
pertaining to the said FIR’s stand already amicably compounded before the Court
during Lok Adalat; that the Forth FIR bearing NO. 67/2023 stands also already
disposed of leaving behind only FIR NO. 349/2023 of PS Manjakote which is
presently pending trial and in which he has been already released on bail; that
besides the aforementioned FIR no’s the ld. Detaining Authority has also made
reference to a Daily Dairy Report No. 13 of 09.04.2025 as well as to a
confidential report of I/C DSB Rajouri dated 16.05.2025 which reports are totally
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baseless and without being any verification; that the ld. Detaining Authority
without application of its mind has proceeded to pass the impugned detention
order without being mindful of his Fundamental Right to liberty which stands
curtailed; that the representation made by him to the Govt on 05.06.2025 was not
considered with the reasonable promptitude and same came to be rejected
through a non-reasoned order passed after 25 days while giving the reference of
the opinion of the Advisory Board; that there is no live-link or proximity
between the last alleged occurrence covered under FIR No. 349/2023 and the
need for passing of the impugned detention order; that the Daily Dairy Report or
any confidential report without any sort of verification cannot be made the basis
of a detention order having the effect of jeopardizing the Fundamental Right of
Liberty of an individual; that the FIR’s that stood registered against him by the
PS Manjakote even if supposed to be true for arguments sake reflect the breach
of law and order and not the public order; that the ld. Detaining Authority
apparently appears to have misused the provisions of the Act to manage his
detention on false and frivolous allegations and that the ld. Detaining Authority
has observed the mandatory provisions of the Article 22(v) of the Constitution of
India read with provisions of Section 13 of the Act in breach by its failure to
furnish the copy of the detention record in its entirety to him at an earliest upon
his detention and as well as by non-consideration of his representation dated
05.06.25 with promptitude.
4. The respondents through the counter affidavit filed by the detaining
authority have resisted the instant petition on the grounds that same is not
maintainable for want of a cause of action as none of the fundamental,
constitutional, statutory or legal rights of the petitioner stand violated/infringed.
That the impugned order was passed with a view to prevent detenu from acting
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or indulging in activities prejudicial to the public order. That the impugned order
does not suffer from any malice or infirmity and, as such, the challenge thrown to
it is misdirected and misconceived. That the petitioner has not approached this
Court with clean hands and has tried to mislead this Court by sheer
misrepresentation of facts. That the writ petition raises pure disputed question of
facts, which cannot be adjudicated upon in a writ petition. That all the procedural
safeguards enshrined in Article 22 (5) of the Constitution of India as well as the
provisions of the Act, while directing the detention of the detenu have been
observed in full. That the liberty of the petitioner is subservient to the welfare,
safety and interests of the society at large and the detain- ing authority has
exercised the power within the ambit of law. That the impugned detention order
has been passed on the subjective satisfaction of the detaining authority, who
applied its mind to the material brought against the detenu. That the copies of the
detention record were furnished to the petitioner/detenu who was also informed
of his right to make a representation against his detention. That the representation
made by the petitioner/detenu to the Govt was considered and found merit less.
That the Senior Superintendent of Police, Rajouri vide communication No.
PA/PSA/2025/107731-34/C 17.05.2025 presented a dossier of activities to the
answering respondent making out a case for detention of petitioner namely Mohd
Shakoor S/o Fateh Mohd R/o Saroola Tehsil Manjakote District Rajouri who is
involved in criminal activities which are highly prejudicial to the maintenance of
public order, safety/security of the lives and properties of the citizens, has created
a serious public disorder, criminal tension and fear in district Rajouri. That the
activities of the petitioner are prejudicial to the maintenance of public order and
safety of the lives of people. That the petitioner is habitual trouble creator and he
is posing threat to the maintenance of public law and order. That the petitioner
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has a desperate character, habitual of indulging in acts of violence and is
involved in numerous criminal cases. That the gravity of his offences is
escalating and his defiance of legal boundaries is evident from his action.
General public is also very apprehensive of his activities and are under fear. That
the acts of the petitioner have posed serious threat to the maintenance of public
order in the whole district. That the criminal/anti-social activities of the petitioner
have posed serious threat to the safety and security of public in general and have
very serious repercussions for the society. It is further submitted that Five (05)
FIRs stand registered against the petitioner. That despite lodging aforementioned
FIRs, the petitioner has not mended his behaviour and is adamant to carryon
criminal/antisocial activities. That as such, it had become the need of the hour to
isolate and detain him under the relevant provisions of Public Safety Act. That
accordingly, the answering respondent vide order No. DMR/PSA/07 dated
22.05.2025 issued detention warrant under the provisions of Public Safety Act.
That it is evident that the criminal activities of the petitioner are highly
prejudicial to the maintenance of public order and peace in the district. That in
order to curb his further such activities, it is necessary to detain him under the
J&K Public Safety act, 1978 which is the only alternative for preventing him
from acting in any manner prejudicial to the public order. That his criminal/anti-
social activities have posed a serious threat to the public order in the Rajouri
District. That the petitioner / detenue found indulged/involved in 05 FIRs viz FIR
No. 18/2006 U/s 498-A/34 RPC, FIR No. 86/2008 U/s 498-A/323 RPC, FIR No.
64/2015 U/s 354/323 RPC, FIR No. 67/2023 U/s 188/IPC, 11 PCA Act & FIR
No. 349/2023 U/s 188/IPC, 11 PCA stand registered with Police Station
Manjakote and Rajouri respectively. That the petitioner/detenue has created a
serious public disorder, criminal tension and fear in District Rajouri. That the
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criminal activities of the petitioner have posed serious threat to the safety and
security of public in general. That the criminal acts of petitioner have very
serious repercussions and highly prejudicial and detrimental to the maintenance
of public order. That the answering respondent was aware that the detenue is
already involved in substantive offences, but keeping in view the activities of the
detenue which on the face of it were highly prejudicial to the public law and
order, the detenue was booked under Public Safety Act strictly as per the
provision of PSA. That whether the detenu applied for bail or not is not the
criteria but the nature of the offence in connection with which the detenue is in
custody is the material and same has been considered by the detaining authority
while detaining the detenue under the provision of PSA. That the detention order
has been passed with due application of mind. That due care was taken by the
answering respondent in examination of material evidence, documents and case
diaries placed before him by the Senior Superintendent of Police, Rajouri along
with Dossier. The dossier is in terms of rule stands scrutiny of law viz-a-viz
liberty of person versus the maintenance of public order for which restrictions of
immediate nature and stringent steps are required to be taken to maintain public
order and security of citizens in the given situation. That answering respondent
after thoroughly perusing the contents of dossier and ground reports so received,
in order to avert any mishap observed that in view of the volatile atmosphere in
the recourse to normal laws may provide an opportunity to the petitioner to
propagate his nefarious designs of creating enmity between people leading to
disturbance in public order as is evident from his provocative anti-national
aspects. That a case was made out to consider on merits his detention under the
J&K public Safety Act to avoid any loss of property by virtue of expected
disturbance of public order as an outcome of planned conspiracy of petitioner to
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vitiate the atmosphere.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the petitioner/detenu while reiterating his stand
taken in his petition contended that order impugned is not sustainable under law
as the same suffers from patent illegality and perversity. He contended that the
allegations leveled against the petitioner/detenu even if supposed to be true for
the sake of arguments do not amount to a conduct which can be termed as
prejudicial to the maintenance of the public order as denied under Section8(3) of
the Act. That the grounds of detention are just the replica of the police dossier
and, as such, the impugned detention order is devoid of application of mind on
the part of detaining authority. That the procedural safeguards mandated under
Article 22 (5) of the Constitution have not been observed by the detaining
authority. That the copies of the detention record were not furnished to the
detenu in full and in time, thus, preventing him from making an effective in time
representation in respect of his detention before the Government. That the
petitioner/detenu was falsely and frivolously involved in a case FIR bearing No.
349/2023 registered with Police Station, Rajouri in which he was granted bail by
the competent court and despite his being on bail he was called and detained by
misusing the provisions of the Act. The learned counsel contended that there was
no material at all available with the detaining authority to take a view that the
petitioner is a habitual offender. He further contended that even if the allegations
against the petitioner/detenu can be supposed to be true for arguments sake, yet
they do not fall under the category of public order. The learned counsel in
support of his contentions placed reliance on the authoritative judgments cited as
V. Shantha vs. State of Telangana and ors, Cri Appleal No. 965 of 2017
decided on 24 th Masy,2017; Jai Singh and ors vs. State of Jammu & Kashmir,
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1985 Legal Eagle (SC) 22 decided on 24.01.1985; Mallada K Sri Ram vs. The
State of Telangana and ors , Cri Appeal No. 561 of 2022 decided on 4 th April,
2022 and Tariq Ahmad Dar vs. State of J&K and ors, 2017(3) JKL
684,LPAHC No. 43/2017 decided on 9thJune 2017.
7. The learned counsel for the petitioner prayed for the quashment of the
impugned detention order and release of the detenu.
8. Per contra, the learned State counsel for the respondents vehemently
submitted that the learned detaining authority was compelled to invoke the
provisions of the Act and to detain the petitioner whose activities were highly
prejudicial to the maintenance of the public order. He contended that the detenu
was involved in various FIRs and was provoking the youth of the area for
indulging in anti national/criminal activities. The learned State counsel submitted
that the impugned order was passed by the detaining authority after proper
application of mind in the light of the material brought before him by the District
Police Superintendent. He contended that all the procedural requirements
mandated under the Constitution as well as under the Act were fully observed.
The learned counsel further submitted that it is a settled legal position that it is
not the quantity of the incriminating material which is required for invoking the
provisions of the Act but the gravity of the actions of the detenu. He contended
that having regard to the conduct of the detenu, there was every reasonable
apprehension that the detenu if kept at large is likely to disturb the social order
in the locality. That having regard to the volatile conduct of the detenu, recourse
to the normal criminal laws was not felt sufficient to deter him from creating
social disorder. The learned State counsel prayed for the dismissal of the writ
petition.
9. I have perused the record of the instant petition and the counter affidavit
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filed by the detaining authority. I have also gone through the detention record
produced by the learned State counsel.
10. Keeping in view the aforementioned perusal and the consideration of rival
arguments advanced on both the sides, in the light of the law on the subject, this
Court is of the opinion that impugned detention order suffers from illegality and
perversity, thus, deserving its quashment.
11. It is undisputed that only one criminal case arising out of case FIR No.
349/2023 under Sections 188 IPC, 11 PCA Act. of P/S Manjakote stood pending
trial against the petitioner, Manjakote at the time of passing of the impugned
detention order. The allegation as per the said case FIR appears to be that the
detenu was coming from Sunderbani side towards Poonch with some cattle tied
with rope without food and fodder. The said FIR was registered against the
petitioner on 27.07.2023, in which he stands bailed out by the competent trial
court.
12. The court in the facts and circumstances of the case is of the opinion that the
offences under the FIR, do not cover the activities prejudicial to said order.
The petitioner as per the case FIR No. 349 of 2023 of P/S Manjakote is
alleged to had been coming from Sunderbani towards Poonch along with 3
bovine animals that were tied with ropes, without food and fodder.
There is no allegations as per the said case FIR that the alleged act of the
petitioner propagated or attempted to create feeling of enmity or hatred on the
ground of religion, community or region.
It is apt to reproduce the provisions of section 8(3) of the Act, which
defines the social order for the purposes of section 8(1) (a) of the Act.
“8.Detention of certain persons
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a. For the purposes of sub-section (1)
[(a) omitted.
(b) “acting in any manner prejudicial to the maintenance of public
order” means –
i.promoting, propagating or attempting to create, feelings of enmity or
hatred or disharmony on ground of religion, race, caste, community,
or region;
ii.making preparations for using, or attempting to use, or using, or
instigating, inciting, provoking or otherwise, abetting the use of force
where such preparation, using, attempting, instigating, inciting,
provoking or abetting, disturbs or is likely to disturb public order;
iii.attempting to commit, or committing, or instigating, inciting,
provoking or otherwise abetting the commission of, mischief within
the meaning of section 425 of the Ranbir Penal Code where the
commission of such mischief disturbs, or is likely to disturb public
order;
iv.attempting to commit, or committing, or instigating, inciting,
provoking or otherwise abetting the commission of an offence
punishable with death or imprisonment for life or imprisonment of a
term extending to seven years or more, where the commission of such
offence disturbs, or is likely to disturb public order;
[(c) “smuggling” in relation to timber or liquor means possessing or
carrying of illicit timber or liquor and includes any act which will
render the timber or liquor liable to confiscation under the Jammu and
Kashmir Forest Act, Samvat, 1987 or under the Jammu and Kashmir
Excise Act, 1958, as the case may be;]
[(d) “timber” means timber of Fir, Kail, Chir or Deodar tree whether
in logs or cut up in pieces but does not include firewood;]
[(e) “Liquor” includes all alcoholic beverages including beer]”.
13. There is a marked difference between disturbance relatable to “law and
order” and disturbance caused to “public order”. It is well settled that breach of
law in all cases does not lead to “public disorder”.
14. The Hon’ble Apex Court has in a catena of judgments noted the difference
between, “law and order” and “public order”.
15. In Ram Manohar Lohia Vs. State of Bihar (1966) 1 SCR 709, it was held
by the Hon’ble Apex Court through Hon’ble M. Hidayatullah. J. (as the Chief
Justice then was) at para 54 as under:-
“54. *** Public order if disturbed, must lead to public disorder.
Every breach of the peace does not lead to public disorder. When
two drunkards quarrel and fight there is disorder but not public
disorder. They can be dealt with under the powers to maintain law
and order but cannot be detained on the ground that they were
disturbing public order. Suppose that the two fighters were of rival
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communities and one of them tried to raise communal passions. The
problem is still one of law and order but it raises the apprehension of
public disorder. Other examples can be imagined. The contravention
of law always affects order but before it can be said to affect public
order, it must affect the community or the public at large. A mere
disturbance of law and order leading to disorder is thus not
necessarily sufficient for action under the Defence of India Act but
disturbances which subvert the public order are.”
16. In Arun Ghosh Vs. State of West Bengal (1970) 1 SCC 98 again Hon’ble
M. Hidayatullah, (CJ) observed that it is not the every case of a general
disturbance to public tranquility which can be termed as public disorder and the
test to be applied in such cases is whether the alleged act leads to the disturbance
of the current of life of the community so as to amount to disturbance of the
public order. That if the alleged act affects some individual or individuals leaving
tranquility of the society undisturbed, the act cannot be termed as amounting to
public disorder. In that case the petitioner/detenu was detained by an order of a
district magistrate since he had been indulging in motivating the youth to join the
militancy in the locality. While holding that the conduct of the petitioner/detenu
could be reprehensible, it was further held that it (read: the offending act) “does
not add up to the situation where it may be said that the community at large was
being disturbed or in other words there was a breach of public order or likelihood
of a breach of public order”.
The observations made by the Hon’ble Apex Court in the said case at para 3 are
reproduced as under:-
“3.*** Public order was said to embrace more of the community
than law and order. Public order is the even tempo of the life of the
community taking the country as a whole or even a specified
locality. Disturbance of public order is to be distinguished from acts
directed against individuals which do not disturb the society to the
extent of causing a general disturbance of public tranquility. It is the
degree of disturbance and its affect upon the life of the community in
a locality which determines whether the disturbance amounts only to
a breach of law and order. … It is always a question of degree of the
harm and its affect upon the community….This question has to be
faced in every case on facts. There is no formula by which one case
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can be distinguished from another.”
17. In Vijay Narain Singh Vs. State of Bihar, (1984) 3 SCC 14, the
Hon’ble Apex Court has held at para32 of the judgment through Hon’ble
E.S.Venkataramiah, J. (as the Chief Justice then was) as under:-
“32.It is well settled that the law of preventive detention is
a hard law and therefore it should be strictly construed. Care
should be taken that the liberty of a person is not jeopardized
unless his case falls squarely within the four corners of the
relevant law. The law of preventive detention should not be
used merely to clip the wings of an Accused who is involved
in a criminal prosecution. It is not intended for the purpose of
keeping a man under detention when under ordinary criminal
law it may not be possible to resist the issue of orders of bail,
unless the material available is such as would satisfy the
requirements of the legal provisions authorizing such
detention. When a person is enlarged on bail by a competent
criminal court, great caution should be exercised in
scrutinizing the validity of an order of preventive detention
which is based on the very same charge which is to be tried
by the criminal court.”
18. In A.K.Roy Vs. Union of India, (1982)1 SCC 271 it was held at para 70 of
the judgment as under:-
70. *** We have the authority of the decisions in … for saying
that the fundamental rights conferred by the different articles
of Part III of the Constitution are not mutually exclusive and
that therefore, a law of preventive detention which falls within
Article 22 must also meet the requirements of Articles 14, 19
and 21.”
19. This Court is also fortified in its opinion with the recent authoritative
judgment of the Hon’ble Apex Court cited as Ameena Begum Vs. The State of
Telagana & Ors., Criminal Appeal arising out of SLP No. 8510 of 2023
decided on 04.09.2023 in which it has been held at para-40 of the judgment as
under:-
“40. On an overall consideration of the circumstances, it does appear
to us that the existing legal framework for maintaining law and order
is insufficient to address like offences under consideration, which the
Commissioner anticipates could be repeated by the Detenu if not
detained. We are also constrained to observe that preventive
detention laws–an exceptional measure reserved for tackling
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emergent situations–ought not to have been invoked in this case as
a tool for enforcement of “law and order”. Thus, for the reason that,
the Commissioner despite being aware of the earlier judgment and
order of the High Court dated 16th August, 2021 passed the
Detention Order ostensibly to maintain “public order” without once
more appreciating the difference between maintenance of “law and
order” and maintenance of “public order”. The order of detention is,
thus, indefensible.”
20. In the above referred case, the allegation against the detenu was that he was
“habitually committing the offences including outraging the modesty of
women, cheating, extortion, obstructing the public servants from
discharging their legitimate duties, robbery and criminal intimidation
along with his associates in an organized manner in the limits of … and he
is a “Goonda” as defined in clause (g) of Section 2” of the relevant Statute
invoked by the Commissioner. The Commissioner, with a view to prevent the
Detenu from acting in a manner prejudicial to maintenance of public order,
recorded not only his satisfaction for invoking the provisions of the Act but also
recorded a satisfaction that “the ordinary law under which he was booked is not
sufficient to deal with the illegal activities of such an offender who has no
regard for the society. Hence, unless he is detained under the detention laws, his
unlawful activities cannot be curbed”.
21. The Hon’ble Apex Court in the landmark judgment cited as Sushanta
Goswami, In Re ([1968} Supreme Court of India) addressed the critical issue of
preventive detention under Article 32 of the Indian Constitution.
The said case involved a collective petition by Sushanta Goswami and 46
others challenging their detention under Section 3 (2) of the Prevention of
Detention Act, 1950. The central question revolved around was whether the
grounds for detention genuinely pertained to maintaining public order or were
merely related to general law and order? The Hon’ble Supreme Court
meticulously examined each petitioner’s grounds for detention, categorizing
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them based on their relevance to “public order.” The Court invalidated detention
orders where the activities alleged did not directly threaten public order but were
instead typical criminal offences such as theft, assault and property damage.
Conversely, detention was upheld only where the activities posed a significant
threat to the community’s overall peace and satiability.
A pivotal aspect of the judgment was the Court’s insistence that detention
under the guise of preventing actions prejudicial to public order must be
substantiated by concrete evidence showing a direct impact on societal harmony.
The Court emphasized the necessity of a clear and direct correlation between the
detainee’s actions and the maintenance of public order.
The Court referenced two significant cases to support its stance:
Dwarka Das Bhatia Vs. State of Jammu & Kashmir (1956 SCR 945): This
case underscored the importance of relevance in grounds for preventive
detention, rejecting arbitrary detentions based on vague or unrelated reasons.
A mere recent decision at the time, this case further clarified the Judiciary’s
view on maintaining the balance between state security and individual liberties,
reinforcing stringent checks on detention orders.
The Court’s legal reasoning hinged on interpreting “public order” with
precision. It delineated between general disturbances of law and order and
actions that genuinely threaten societal piece. The judgment clarified that not
every act disrupting law and order qualifies as being “prejudicial to public
order.” For instance, petty thefts or assaults without broader societal implications
do not meet the threshold for preventive detention under the Act.
Furthermore, the court critiqued the authorities‟ tendency to conflate individual
criminal acts with threats to public order, thereby undermining the very essence
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of preventive detention. By setting aside detention orders lacking directrelevance, the court reinforced the principle that such extreme measures must be
reserved for genuine threats to societal harmony.”
22. So it is reiterated that the material brought before the learned detaining
authority by the District Superintendent of Police, Rajouri was not of such a
nature which could have been understood and apprehended as prejudicial to the
“public order”. The alleged actions of the petitioner no doubt amount to infraction
of laws for which the legal mechanism was all sufficient to deal with. The
invocation of the provisions of the Act to detain the petitioner rather than to deal
with him under the general criminal law appears to be an unjustified exercise tent
amounting to violation of the fundamental rights of the petitioner. Under these
circumstances, the non-application of the mind is discernible in the matter.
23. It is a settled legal position that a detention order suffering from non-
application of mind of the detaining authority cannot be sustained under law.
24. The learned detaining authority appears to have followed the police dossier
without application of mind.
This Court in cases titled “Naba Lone vs. District Magistrate, 1988 SLJ
300″ and “Mohd. Farooq through Mohd. Yousuf vs. UT of J&K and others,
WP (Crl) No. 17/2023″, decided on 03.09.2024 has laid down the law to the
effect, “the grounds of detention supplied to the detenu is a copy of dossier,
which was placed before the District Magistrate for his subjective satisfaction in
order to detain the detenu. This shows total non-application of mind on the part
of the Detaining Authority as he has dittoed the Police directions without
applying his mind to the facts of the case.”
25. It was submitted by learned counsel for the petitioner during his arguments
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that the copies of the detention record were not in entirety and in time furnished
to the detenu which prevented him from making an in time effective
representation to the detaining authority or to the government. It is being
repeatedly observed that signatures of the detenus are taken on previously
computerized/cyclostyled receipts mentioning the title of the documents and the
number of pages. A detenu is deemed to be under undue influence at the time he
is required to sign on the receipt. The same is also true in case of the document
disclosing that detenu was informed of his right to move a representation to the
detaining authority or the government. Such receipts in view of the involvement
of the fundamental right of the detenu to his liberty ought to be obtained under
the own handwriting of the detenu or in case of his inability to do so on account
of his illiteracy, the same can be required to be written preferably by any
available public servant or a civilian at the instance of the detenu and signed by
him.
26. There appears to be no proximity or live link between the alleged incident
of 25.07.2023 covered under FIR No. 349/2023 U/Ss 188 IPC, 11PCA Act of
P/S Manjakote and the passing of the detention order dated 22.05.2025.
A period of about two years appears to have elapsed since the last alleged
incident of dated 25.07.2023 upto the passing of the impugned detention order.
The DDR No. 13 dated 09.04.2025 as also the confidential report of I/C DSB
Rajouri dated 16.09.2025 which are admittedly uncorroborated and unverified
even on the part of the P/S concerned cannot be considered so much so that to
eclipse the most valuable right of liberty of an individual.
Otherwise also irrespective of the proximity or live link between the
alleged last incident and the necessity for passing of the impugned detention
order, the alleged activities of the petitioner/detenue which present a law and
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order situation to be taken care of under normal law cannot warrant and
justify the preventive detention on the pretext of “public disorder”.
27. This Court in its opinion feels supplemented with the authoritative
Judgment of the Hon’ble Supreme Court of India titled “Rajinder Arora vs.
Union of India and Ors” AIR 2006(4) SCC 796, decided on 10th March,
2006. The relevant paras of the Judgment are reproduced as under: –
“The conspectus of the above decisions can be summarized thus:
The question whether the prejudicial activities of a person
necessitating to pass an order of detention is proximate to the time
when the order is made or the live link between the prejudicial
activities and the purpose of detention is snapped depends on the
facts and circumstances of each case. No hard and fast rule can be
precisely formulated that would be applicable under all
circumstances and no exhaustive guidelines can be laid down in
that behalf. It follows that the test of proximity is not a rigid or
mechanical test by merely counting number of months between the
offending acts and the order of detention. However, when there is
undue and long delay between the prejudicial activities and the
passing of detention order, the court has to scrutinize whether the
detaining authority has satisfactorily examined such a delay and
afforded a tenable and reasonable explanation as to why such a
delay has occasioned, when called upon to answer and further the
court has to investigate whether the causal connection has been
broken in the circumstances of each case.
Similarly, when there is unsatisfactory and unexplained delay
between the date of order of detention and the date of securing the
arrest of the detenu, such a delay would throw considerable doubt
on the genuineness of the subjective satisfaction of the detaining
authority leading to a legitimate inference that the detaining
authority was not really and genuinely satisfied as regards the
necessity for detaining the detenu with a view to preventing him
from actin in a prejudicial manner. ”
28. This Court in its opinion is also fortified with the authoritative
judgment of the Hon’ble Apex Court passed in case titled “Rameshwar Shaw
Vs. District Magistrate, Burdwan and another“, AIR 1964 SC, 334, the
relevant portion whereof is reproduced as hereunder:
18
“In deciding the question as to whether it is necessary to detain a
person, the authority has to be satisfied that the said person if not
detained may act in a prejudicial manner and this conclusion can be
reasonably reached by the authority generally in light of evidence about
past prejudicial activities of the said person. When evidence is placed,
the Detaining Authority has to examine the said evidence and decide
whether it is necessary to detain the said person in order to prevent him
from acting in a prejudicial manner. Thus, it was held that the past
conduct or antecedent history of a person can be taken into account in
making the detention order and it is largely from prior events showing
tendencies or inclinations of a man that an inference could be drawn
whether he is likely even in the future to act in a manner prejudicial to
the maintenance of public order. Further the past conduct or history of
the person on which the authority purports to act should ordinarily be
proximate in point of time and should have the rational connection with
the conclusion that the detention of the person is necessary, that it
would be irrational to take into account the conduct of a person which
took the place years before the date of detention”.
29. The opinion of this Court is also supplemented by another
authoritative Judgment of the Hon’ble Apex Court cited as “Sushanta Kumar
Banile Vs. State of Tripura & Ors“. AIR, 2022 SC 4175, in which, it has been
held that undue and unreasonable gap between the alleged accusation and the
passing of the detention order snaps the live link between the two.
30. On the basis of the afore referred authoritative Judgments, this Court
is of the opinion that the Detaining Authority has not applied its mind before
passing the impugned detention order.
31. It was incumbent upon the Detaining Authority to address to itself as
to how the normal criminal law was inadequate to tackle the petitioner who
had been granted bail in the criminal cases registered against him. It is not the
case of the respondents that the petitioner/detenue had violated the bail
conditions nor is it their stand that they assailed the bail orders but did not
succeed and, therefore, they bonafidely invoked the provisions of the Act to
detain the petitioner with the view to prevent him from repeating his alleged
illegal activities of illicit trafficking in drugs.
19
32. The Hon’ble Supreme Court in case of “Rekha Vs. State of Tamil
Nadu through Secretary to Government and Anr” reported in (2011) 5 SCC
244 has laid emphasis on the fundamental right to life and personal liberty of
a citizen of India guaranteed under Article 21 of our Constitution and has,
accordingly, stressed for taking great care and caution while passing any
preventive detention orders so that same are passed in case of genuine and
inevitable need only without any misuse or abuse of the powers.
33. The preventive detentions need to be passed with great care and
caution keeping in mind that a citizens most valuable and inherent human
right is being curtailed. The arrests in general and the preventive detentions
in particular are an exception to the most cherished fundamental right
guaranteed under Article 21 of the Constitution of India. The preventive
detentions are made on the basis of subjective satisfaction of the detaining
authority in relation to an apprehended conduct of the detenu by
considering his past activities without being backed by an immediate
complaint as in the case of the registration of the FIR and, as such, is a
valuable trust in the hands of the trustees. The provisions of Clauses (1) and
(2) of Article 22 of our Constitution are not applicable in the case of
preventive detentions. So, the provisions of Clause (5) of the Article 22 of
our Constitution, with just exception as mentioned in Clause (6), together
with the relevant provisions of the Section 8 of PSA requiring for
application of mind, subjective satisfaction, inevitability of the detention
order, proper and prompt communication of the grounds of detention and
the information of liberty to make a representation against the detention
order, are the imperative and inevitable conditions rather mandatory
requirements for passing of a detention order.
20
34. It is also clear from a perusal of the detention record that inordinate
delay has been occurred in addressing the representation of the
petitioner/detenu. The representation dated 05.06.2025 of the petitioner has
been replied on 30.06.2025 after a gap of 25 days, which tent-amounts to the
infraction of the provisions of Article 22(5) of the Constitution read with the
Section 13 of the Act.
35. For the foregoing discussion, there seems to be merit in the instant petition,
which is allowed and consequently the impugned detention order bearing No.
DMR/PSA/07 of 2025 dated 22.05.2025 passed by the respondent No.2 i.e.
District Magistrate, Rajouri is quashed. The petitioner/detenu is directed to be
released forthwith from his preventive detention in the instant case.
36. The detention record is directed to be returned back to the office of the
learned Deputy Advocate General concerned against proper acknowledgment.
37. Disposed off.
(Mohd. Yousuf Wani)
Srinagar: Judge
12.03.2026
Ayaz
i) Whether the Judgment is speaking: Yes
ii) Whether the Judgment is reportable : Yes