Jammu & Kashmir High Court
Mohd Ayaz vs Ut Of J&K And Ors on 12 March, 2026
Supple S-7
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
(Through Virtual Mode)
HCP 96/2025
Pronounced on 12.03.2026.
Uploadedon 16.03.2026
Mohd Ayaz
...Petitioner(s)/Appellant(s).
Through: Ms. Damini Singh Chouhan, adv.
Vs.
1. UT of J&K and ors
...Respondent(s).
Through: Mr. Deewaker Sharma, 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
brother is an order of detention bearing No. DMP/PSA/05 of 2025 dated:
11.06.2025 passed by the respondent No. 2 (hereinafter referred to as the
‘Detaining Authority’ for short), while invoking his powers under Section
8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter
referred to as the ‘Act’ for short), whereby the petitioner 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 the Central
Jail Kot Bhalwal, Jammu. The petitioner-detenue has assailed the
impugned detention order on the grounds, inter alia, that he is a citizen of
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India and a domicile of UT of Jammu and Kashmir, as such, within hisrights to seek the enforcement of his constitutional as well as other
legal/statutory rights; that he is of the age of 49 years and a permanent
resident of Buni Khet (Dhooni Khet) District, Poonch, who has been
falsely branded as a habitual bovine smuggler for managing his preventive
detention; that the impugned detention order has not been passed on any
proximate or compelling necessity but on generalized and unverified
allegations; that the grounds of detention reflect his involvement in three
case FIR’s out of which two cases have been disposed of and other one
FIR No.0061/2025 dated 05.05.2025 u/s 233 BNS of P/S Surankote, is
pending investigation; that the ld. Detaining Authority has mechanically
acted on the police dossier without conducting any independent verification
or otherwise applying its own mind in respect of the matter; that even if the
allegations against him are supposed to be true for arguments sake, they
still pertain to law and order violations and not to acts prejudicial to public
order as alleged; that he was not furnished with the complete set of the
detention record which has made him unable to make a timely
representation against his detention order; that his detention is punitive in
nature and camouflaged as preventive; that the impugned detention order
is vitiated by procedural irregularities, absence of subjective satisfaction
and colourable exercise of power by the Detaining Authority which make
the same unconstitutional, illegal and liable to be set aside; that the grounds
of detention are the verbatim of police dossier thereby indicating the non-
application of mind by the learned Detaining Authority and that his illegal
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and unjustified detention tantamounts to the infringement of his
Fundamental Right to Life and Liberty guaranteed under Article 21 of the
Constitution of India.
2. The respondents through their counter affidavit filed by the learned
Detaining Authority i.e. respondent No. 2 resisted the instant petition on
the grounds that none of the legal, fundamental or statutory rights of the
petitioner-detenue have been infringed and the petition is utterly
misconceived, false and frivolous deserving its dismissal. That the
concerned SSP forwarded a dossier of activities of the petitioner to the
answering respondent i.e. the Detaining Authority, making out a case for
his detention being a habitual bovine smuggler in the area. That his
escalating involvement in bovine smuggling characterized by a blatant
disregard for the law, has profoundly disrupted the peaceful equilibrium of
the region. That the actions of the petitioner-detenu are deeply detrimental
to the public order, have instilled fear and animosity among the local
population, disrupting the harmonious rhythm of community life. That the
subjective satisfaction drawn by the detaining authority before ordering the
detention of the petitioner under the Preventive Detention Act cannot be
questioned on the ground of insufficiency of the incriminating material
against the detenu. That the observance of the procedural safeguards by the
detaining authority leaves little scope for the detenu to assail the impugned
order. That keeping in view the prejudicial activities of the detenu,
preventive detention of the petitioner/detenu has been ordered so as to deter
him from acting and/or indulging in prejudicial activities, as such writ
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petition merits dismissal. That the impugned order of detention does not
suffer from any malice or legal infirmity, as such challenge thrown to it is
totally misdirected and misconceived, hence on this score the writ petition
merits dismissal. That the petitioner has not approached this Hon’ble Court
with clean hands and has instead tried to mislead this Hon’ble Court by
sheer misrepresentation of facts, on this score also, the writ petition merits
dismissal in limine. That the writ petition raises pure disputed question of
facts, which cannot be adjudicated in a writ jurisdiction before this Hon’ble
Court. On this ground alone, the writ petition is liable to be dismissed. That
the deponent has observed all the constitutional and statuary safeguards
enshrined in Article 22(5) of the Constitution of India as well as provisions
of the Jammu and Kashmir Public Safety Act 1978, while directing the
detention of the detenu, hence the writ petition deserves to be dismissed.
That the liberty of the detenu is subservient to the welfare, safety and
interest of society at large and the deponent has exercised the power in
detaining him under PSA within the ambit of the law of the land by
observing all the safeguards, as such, the writ petition merits dismissal.
That the grounds of detention, were read over and explained to the detenu
in the language the detenu understands. That despite the registration of
three FIR(s) against the petitioner, he did not mend his behaviour and
remained adamant in continuing the smuggling of bovine animals, leaving
no alternative for the answering respondent but to invoke the provisions of
the Public Safety Act in the larger public interest. That the answering
respondent was aware that the petitioner/detenue is already involved in
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substantive offences, but keeping in view his activities which were highly
prejudicial to the social order, the detenue was booked under Public Safety
Act, strictly as per the provisions of the same. That the petitioner is
involved in case FIR No. 0061/2025 under Sections 233 BNS, of Police
Station Surankote, which is under investigation when he stands already
convicted in two earlier FIR Nos 0316/2022 and 0400/2022 both of P/S
Surankote as himself admitted by the petitioner/detenu. That a copy of
whole of the material relied upon by the answering respondent has been
furnished to the petitioner-detenue and also read over and explained to him
in the languages which he understood fully and in token of which his
signature was obtained. That moreover the petitioner/detenue was informed
that he can make a representation to the Government as well as the
Detaining authority against his detention. That all the statutory
requirements and constitutional guarantees have been fulfilled and
complied with by the answering respondent. That the detention order in
question has been passed by the answering respondent upon proper
application of mind on the basis of the record brought before him.
3. Heard the learned counsel for the parties in the matter.
4. The learned counsel Ms. Damini Singh Chauhan, Advocate, while
reiterating the stand already taken in the petition contended that the
impugned detention order is the outcome of illegality and incorrectness for
being devoid of application of mind and subjective satisfaction on the part
of the ld. Detaining Authority. She contended that petitioner-detenue is
alleged to be involved in case bearing FIR No. 0061/2025 registered at
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Police Station, Surankote. That the said case FIR is pending investigation
before the concerned police station, and it is not the case of the
investigation officer that the petitioner was found and arrested on spot
transporting the bovine animals.
That admittedly in earlier case FIR Nos 0316/22 and 0400/22 of
P/S Surankote, the petitioner/detenu at the trial of the same, voluntary
made confession after plea bargaining to get the said cases disposed off
against the payment of some amount of fine so as to save his time and
prevent his mental agony. That the petitioner did not confess in the said
cases on merits.
That in the under investigation case, the petitioner is presumed to be
innocent as per the cardinal principle of criminal jurisprudence of our
country.
It was further contended that so called Adverse report dated
27.04.2025 of P/S Surankote and Istigasa under section 126, 129, 17 of
BNSS dated 27.04.2025 and 08.05.2025 respectively being without any
verification cannot base a detention order.
The learned counsel very vehemently contended that the ld.
Detaining Authority has misused its power vested in it under the Act by
ordering the preventive detention of the petitioner-detenue on the allegation
of his illegal activities which may amount to infraction of General Law and
Order and not disorder in the society. He contended that none of the
allegations/involvements amount to breach of public order as defined under
Section 8(3) of the Act. He further submitted that it is well settled by
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Hon’ble Supreme Court in a catena of judgments that there lies a marked
distinction between the acts amounting to breach of law and order and the
acts prejudicial to the social order.
The learned counsel also contended that the copy of detention
record in its entirety especially the grounds of detention, the Police Dossier
and the documents regarding criminal cases were not furnished to
petitioner/detenu which amounts to the violation of the mandatory
provisions of Article 22(5) of the Constitution of India read with Section 13
of the Act.
The learned counsel submitted that in the facts and circumstances of
the case, it is quite clear that the detention of the petitioner-detenue is
apparently illegal, as not being justified under the provisions of Section 8
of the Act. He contended that the impugned detention order is the outcome
of non-application of mind on the part of ld. Detaining Authority.
It was further contended that the learned detaining authority has
wholly and solely relied upon the police dossier without making any
independent inquiry or probe and the grounds of detention are the replica
of police dosser.
The leaned counsel for the petitioner in support of for arguments
placed reliance on the authoritative judgments cited as, “Raziya Umar
Bakshi vs. Union of India & Ors (AIR 1980 SC 1751); Chaju Ram vs.The
State of Jammu & Kashmir, AIR 1971 SC 263; HCP No. 4/2024 titled
Hamid Mohd vs. UT of J&K and ors decided on 06.08.2024; HCP No.
72/2024 titled Muskan Ali vs. UT of J&K and ors decided on 29.08.24; Sai
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fud din vs. UT of J&K HCP No. 111/2024: State of Maharashtra vs.
Santosh Snober Acharya 2000(7) SCC 463″.
The learned counsel for the petitioner sought the quashment of the
impugned detention Order.
5. Per contra, the ld. UT Counsel submitted that the petition is liable
to be dismissed as none of the constitutional or any other statutory rights of
the petitioner have been infringed by the respondents. He submitted that the
detention order impugned in the petition has been passed on the due
application of mind by the ld. Detaining Authority who was satisfied on the
basis of the record of the dossier and the field inputs gathered by him that
the activities of the petitioner are likely to endanger the public order. He
contended that despite earlier registration of criminal cases against the
petitioner and his being convicted in two cases, he did not mend his
character but continued to indulge in aforesaid activities especially
smuggling of bovine animals. He further contended that the object of the
detention under the Act is preventive rather than punitive and is aimed at to
debar an individual beforehand from indulging in activities prejudicial to
the public order. The ld. State Counsel further contended that the
petitioner/detenue who is of the age of about 49 years is a known habitual
bovine smuggler in the area. That his criminal behaviour is becoming more
serious and the general public has been registering its strong resentment for
the actions of the petitioner-detenu regarding bovine smuggling.
The learned UT counsel further contended that the copies of the
detention record in entirety were furnished to the petitioner/detenue who
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has acknowledged the receipt of the same at the time of his detention. That
he was also informed of the grounds of detention in the language
understood by him with further information that he has a right to make a
representation to the detaining authority as well as to the Government.
6. I have perused the instant petition, the reply affidavit and have also
gone through the detention record produced by the ld. UT Counsel.
7. Keeping in view the aforesaid perusal and the consideration of the
rival arguments advanced on both the sides in the light of law on the
subject, this Court is of the opinion that a ground is made out for interfering
with the impugned detention order as the same suffers from patent
illegality, misuse of power and non-application of mind on the part of the
detaining authority.
The main issue for redressal in the instant case is :-
I. Whether the allegations against the petitioner culminating into
registration of three Case FIR’s(two of which stand already disposed
of on the confession of the petitioner) have the tendency to be
prejudicial to the social order and if the answer is in the negative,
whether the impugned detention order suffers from non-application of
mind?
8. Taking the issue for determination, the Court in the facts and
circumstances of the case is of the opinion that although the criminal acts
of petitioner which have culminated into the registration of three case FIR’s
one of them presently under investigation and the other two already
disposed of, no doubt, amount to infraction of law and order by falling
within the definition of relevant offences under IPC/BNS, PCA Act yet the
same have not the implication of disturbing the ‘social order’. The last
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surviving case FIR is under investigation in the concerned police station.
The said FIR No. 0061 of P/S Surankote Poonch pertains to the alleged
occurrence of 05.05.2025. The allegations made therein, as mentioned
hereinbefore, relate to an issue of law and order and not to public order.
The allegations under the aforesaid case FIR, even if supposed to be true or
proved for arguments sake, yet it cannot amount to activities prejudicial to
social order.
9. 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
(3) 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
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firewood;]
[(e) “Liquor” includes all alcoholic beverages including beer]”.
10. The Hon’ble Apex Court has in a catena of judgments noted the
difference between, “law and order” and “public order”.
11. 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 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.”
12. 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 teasing, harassing and molesting
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young girls and assaults on individuals of a 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 can be distinguished
from another.”
13. In Kuso Sah Vs. The State of Bihar (1974) 1 SCC 195, the
Hon’ble Apex Court through Hon’ble Y.V. Chandrachud, J. (as the Chief
Justice then was) speaking for the Bench held at paras 4 & 6 as under:-
“4. The two concepts have well defined contours, it being well
established that stray and unorganized crimes of theft and assault
are not matters of public order since they do not tend to affect the
even flow of public life. Infractions of law are bound in some
measure to lead to disorder but every infraction of law does not
necessarily result in public disorder.”
“6. The power to detain a person without the safeguard of a
court trial is too drastic to permit a lenient construction and
therefore Courts must be astute to ensure that the detaining
authority does not transgress the limitations subject to which
alone the power can be exercised.”
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14. 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.”
15. 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.”
16. 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:-
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“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 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.”
17. 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”.
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18. 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
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
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grounds for preventive detention, rejecting arbitrary detentionsbased 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
society and individual liberties, reinforcing stringent checks on
detention order.
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 of preventive detention. By setting aside detention orders lacking
direct relevance, the court reinforced the principle that such extreme measures
must be reserved for genuine threats to societal harmony.”
19. So it is reiterated that the material brought before the
learned detaining authority by the District Superintendent of
Police, Poonch 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
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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.
20. 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.
21. 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.”
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
HCP (96/2025) P a g e |17
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.
22. The allegations against the petitioner-detenu as per the pending
investigation case arising out of the case FIR No. 0061 of 2025 of Police
Station Surankote is the commission of the acts punishable under the sections
223 BNS. There is no allegation against the petitioner-detenu regarding the
commission of any act creating or attempting to create any feeling of enmity,
hatred or disharmony on the ground of religion, caste and community.
23. Since the alleged activities of the petitioner/detenue, present a law
and order situation to be dealt with under the normal law, passing of the
impugned detention order on the pretext of, ” public disorder” was not
justified.
HCP (96/2025) P a g e |18
24. 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.
25. It was incumbent upon the Detaining Authority to address to itself
as to how the normal criminal law is inadequate to tackle the petitioner who
is involved in the criminal case and stands bailed out. 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 smuggling bovine animals.
26. 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.
27. It is the case of the petitioner/detenu that his representation dated
17.06.2025 was turned a deaf ear by the respondents.
It has been pleaded by the petitioner/detenu at para 4 ( C)- Grounds
of challenge, of his petition that he has been falsely and frivolously
accused of transporting bovine animals without any permission. That in
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reality, he is an agriculturist/cultivator by profession who legitimately deals
with farm animals as a means of livelihood and possesses a valid and
lawful permit for the seasonal movement of animals for pasture within
the District of Poonch which was effective until 30.11.2025. A copy of the
said permit issued by the Tehsildar concerned with date of renewal upto
30.11.2025 has been placed on the record of the petitioner as Annexure-X
28. The preventive detentions need to be passed with great care and
caution keeping in mind that a citizen’s 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 detenue 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), 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 detention order.
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29. There is no whisper in the impugned detention order or in the
grounds of detention regarding any independent probe by the learned
detaining Authority, which appears to have acted upon the police dossier.
30. It is apparent from the perusal of the detention record that
admittedly as contended by the petitioner/detenu in his petition, his
representation dated 17.06.2025 has been turned a deaf ear. The order
dated 24.06.2025 of the learned Advisory Board passed on the reference of
the Govt-Home Department reveals that no representation appears to have
been filed by the petitioner as no such document is placed on the records,
when the detention record to the contrary has a communication dated
24.06.2025 of the Govt Home Department addressed to the Advisory Board
regarding forwarding of the representation of the petitioner for
consideration.
31. For the foregoing discussion, the impugned order appears to be the
outcome of the non-application of mind and misuse of powers.
32. The petitioner/detenue has already suffered a detention of about
Nine (9) months pursuant to the impugned detention order.
33. Accordingly, the petition is allowed and the impugned detention
order bearing No. DMP/PSA/05 of 2025 dated: 11.06.2025 passed by the
respondent No. 2 i.e. District Magistrate, Poonch, is quashed with the
direction to the respondents to release the petitioner/detenue namely Mohd
Ayaz s/o Mohd Shafi r/o Bhounikhet, (Dhooni Khet) PO Sialan, District
Poonch J&K 185121, forthwith from his preventive detention in the instant
case.
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34. The detention record is ordered to be returned back to the Office of
the learned Dy AG, Jammu against proper receipt.
35. Disposed of.
(MOHD YOUSUF WANI)
JUDGE
SRINAGAR
12 .03.2026
Ayaz
Whether the judgment is speaking? Yes
Whether approved for reporting? Yes
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