Altaf Hussain vs Police Station on 13 July, 2026

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    Jammu & Kashmir High Court

    Altaf Hussain vs Police Station on 13 July, 2026

                                                                                          2026:JKLHC-JMU:2066
    
    
    
    
           HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                           AT JAMMU
    
    HCP No.159/2025
    CM No.7157/2025
                                                Reserved on:            09.07.2026
                                                Pronounced on:13.07.2026
                                                Uploaded on:  13.07.2026
                                                Whether the operative part or full
                                                judgment is pronounced:            Full
    
    Mohammad Rizwan S/o Altaf Hussain,
    R/o Gurian
    Tehsil and District Kishtwar
    Through his father
    Altaf Hussain
    
                                                      ...Petitioner(s)
    
                 Through: Mr. Tayyab Javed Qureshi, Advocate.
                                    Vs.
         1. Union Territory of Jammu & Kashmir through
            its Commissioner/Secretary, Home Department,
            Civil Secretariat, Jammu.
         2. Director General of Police, J&K Jammu.
         3. District Magistrate, Kishtwar;
         4. Sr. Superintendent of Police (SSP),
            District Kishtwar;
         5. Superintendent of Police (SP),
            District Kishtwar;
         6. Station House Officer,
            Police Station, Kishtwar.
    
    
                                                    ...Respondent(s)
    
                 Through: Mr. Adarsh Bhagat, GA.
    
    CORAM: HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
                                   JUDGMENT
    

    1. Vide detention Order No. 3rd/DMK/PSA of 2025 dated

    21.07.2025 (for short ‘impugned order’) passed by

    SPONSORED

    respondent No.3-District Magistrate, Kishtwar, the petitioner

    was ordered to be detained under preventive custody in terms

    of Section 8(2) of J&K Public Safety Act, 1978 (for short

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    ‘the Act’) with a view to prevent him from acting in any

    manner prejudicial to the ‘maintenance of the public order’.

    2. By way of the present petition, the petitioner seeks the

    quashment of the aforesaid order of detention, inter alia, on

    the grounds that the impugned detention order was neither

    approved nor subsequently confirmed by the Government

    within the period prescribed under the provisions of the Act;

    that the detenue was not furnished with the material and

    other relevant documents relied upon by the detaining

    authority, nor were the same read over and explained to him

    in a language understood by him, thereby depriving him of an

    effective opportunity to make a meaningful representation;

    that the detenue was not informed of his valuable right to

    submit a representation before the competent authority,

    resulting in a serious infringement of his constitutional and

    statutory safeguards; lastly that since the detenue was

    granted bail in FIR No. 05/2025, the preventive detention

    could not have been ordered.

    3. Pursuant to the notices issued by this Court, respondent No.

    3-District Magistrate, Kishtwar, has filed a detailed counter

    affidavit vehemently opposing the writ petition. It is

    contended that, having regard to the prejudicial activities of

    the detenue, the impugned order of preventive detention was

    passed with a view to preventing him from acting in any

    manner prejudicial to the maintenance of public order; that

    the detention is neither punitive nor reformative in nature,

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    but is purely preventive, having been ordered by the detaining

    authority upon due consideration of the police dossier and the

    material placed on record, coupled with the independent

    application of mind; that, despite having been enlarged on

    bail, the detenue failed to mend his ways and continued to

    indulge in activities detrimental to the maintenance of public

    order, thereby necessitating the issuance of the preventive

    detention order and lastly that no constitutional or statutory

    right of the detenue has been infringed and that the impugned

    detention order was passed and executed strictly in

    accordance with law in the larger interest of preserving public

    order and ensuring public security.

    4. Heard learned counsel for the parties, perused the detention

    record produced by learned counsel for the respondents and

    considered.

    5. The first contention urged by the learned counsel for the

    petitioner is that the impugned order of detention was neither

    approved nor subsequently confirmed by the Government

    within the period prescribed under the provisions of the Act.

    The said contention, however, does not merit acceptance. A

    perusal of the detention record reveals that the impugned

    detention order dated 21.07.2025 was duly approved by the

    Government of Jammu and Kashmir, Home Department, on

    24.07.2025, well within the statutory period prescribed under

    the Act. Equally devoid of merit is the further contention that

    the detention order was not confirmed within the prescribed

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    period. The record clearly demonstrates that, following its

    approval, the Government of Jammu and Kashmir, Home

    Department, confirmed the impugned detention order on

    18.08.2025. Thus, the first contention of the learned counsel

    for the petitioner on this count is found to be factually

    incorrect.

    6. The second contention advanced by the learned counsel for

    the petitioner is that the detenue was neither furnished with

    the material and other relevant documents relied upon by the

    detaining authority nor were the contents thereof read over

    and explained to him in a language understood by him,

    thereby depriving him of an effective opportunity to make a

    meaningful representation against the order of detention. The

    said contention also is equally devoid of merit. A perusal of

    the detention record reveals that, at the time of execution of

    the impugned detention order, as many as 99 leaves

    comprising the grounds of detention and all the relevant

    material relied upon by the detaining authority were duly

    supplied to the detenue against proper receipt. The record

    further reflects that the contents of the detention order and

    the accompanying material were read over to the detenue in

    English and explained to him in Urdu/Kashmiri, the

    languages understood by him, and that he acknowledged the

    receipt thereof by affixing his signatures. Thus, the said

    contention is wholly misconceived and devoid of any merit,

    and consequently deserves to be rejected.

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    7. The third contention urged on behalf of the petitioner is that

    the detenue was not informed of his valuable right to submit a

    representation against the order of detention before the

    competent authority. The contention cannot be accepted. The

    Execution Report, which forms part of the detention record,

    clearly demonstrates that the detenue was duly informed of

    his right to make a representation to the Government against

    the impugned detention order, if he so desired. The official

    record, therefore, completely belies the petitioner’s plea.

    Consequently, the contention is found to be wholly

    misconceived and devoid of any merit.

    8. Fourth ground raised by the petitioner is that since the

    detenue was granted bail in FIR No. 05/2025, the preventive

    detention could not have been ordered. A perusal of the

    grounds of detention reveals that the factum of grant of bail

    was very much within the consideration of the detaining

    authority while arriving at subjective satisfaction. Once the

    authority has taken note of the bail order and still found the

    detenue’s activities prejudicial, the detention order would not

    be rendered illegal. Preventive detention and criminal

    prosecution operate in different fields. Acquittal or grant of

    bail in a criminal case does not ipso facto debar the competent

    authority from passing an order of preventive detention if the

    authority is satisfied that the activities of a person are

    prejudicial to the security of the State or maintenance of

    public order. The Hon’ble Supreme Court in “Haradhan Saha

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    v. State of West Bengal & Ors” reported in (1975) 3 SCC

    198 has authoritatively held that prosecution in a criminal

    case and preventive detention are not synonymous and that

    an order of detention can validly be passed even when

    prosecution is pending. Relevant portion in paragraphs No. 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. In preventive 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

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    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.”

    Similarly, in “Union of India v. Paul Manickam reported in

    (2003) 8 SCC 342″, it has been held that merely because a

    person is in custody or has been granted bail does not
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    preclude the detaining authority from invoking preventive

    detention laws if there exists compelling necessity for doing

    so.

    9. The detaining authority, before invoking the preventive

    detention, discussed various grounds for detention,

    incorporating that the detenue has been involved in serious

    criminal activities, including theft, burglary and other anti-

    social activities and as many as four FIRs bearing FIR No.

    218/2022, 100/2024, 05/2025 and 20/2025 have been

    registered against the detenue; that the activities of the

    subject is affecting the welfare of the people of District

    Kishtwar and caused fear among the business community as

    well as to the local people; that the detenue poses a serious

    threat to the maintenance of public order and the safety of law

    abiding citizens particularly due to his repeated indulgence in

    thefts, burglaries and acts of public nuisance.

    10. Perusal of the detention record would indicate that the

    detenue is a habitual offender and a hard core criminal who

    has consistently remained involved in unlawful and anti-

    social activities that are gravely prejudicial to the maintenance

    of public order. It is further asserted that upon careful

    examination of the material on record, the detaining authority

    is of the considered opinion that the activities of the detenue

    are gravely prejudicial to the maintenance of public order and

    the said activities of the detenue persuaded the detaining

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    authority in order to curb his activities to order detention of

    the detenue under the provisions of Public Safety Act.

    11. Right of personal liberty is a most precious right guaranteed

    under the Constitution of India. A person is not to be deprived

    of his personal liberty, except in accordance with procedures

    established under law and the procedure as laid down in the

    case “Maneka Gandhi vs. Union of India, (1978 AIR SC

    597)”, is to be just and fair. The personal liberty may be

    curtailed where a person faces a criminal charge or is

    convicted of an offence and sentenced to imprisonment.

    Where a person is facing trial on a criminal charge and is

    temporarily deprived of his personal liberty owing to criminal

    charge framed against him, he has an opportunity to defend

    himself and to be acquitted of the charge in case prosecution

    fails to bring home his guilt. Where such person is convicted

    of offence, he still has satisfaction of having been given

    adequate opportunity to contest the charge and also adduce

    evidence in his defense.

    12. Framers of the Constitution, however, have, by incorporating

    Article 22(5) in the Constitution, left room for detention of a

    person without a formal charge and trial and without such

    person being held guilty of an offence and sentenced to

    imprisonment by a competent court. Its aim and object are to

    save society from activities that are likely to deprive a large

    number of people of their right to life and personal liberty. In

    such a case it would be dangerous, for the people at large, to

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    wait and watch as by the time ordinary law is set into motion,

    the person, having dangerous designs, would execute his

    plans, exposing general public to risk and causing colossal

    damage to life and property. It is, for that reason, necessary to

    take preventive measures and prevent a person bent upon to

    perpetrate mischief from translating his ideas into action.

    Article 22(5) of the Constitution of India, therefore, leaves

    scope for enactment of preventive detention law.

    13. Referring to the observations made by the Constitution Bench

    of the Supreme Court in the case of ‘The State of Bombay v.

    Atma Ram Shridhar Vaidya AIR 1951 SC 157‟ would be

    advantageous. Paragraph 5 of the said judgment lays law on

    the point, which is profitable to be reproduced hereunder:

    “5. It has to be borne in mind that the legislation in
    question is not an emergency legislation. The powers
    of preventive detention under this Act of 1950 are in
    addition to those contained in the Criminal
    Procedure Code
    , where preventive detention is
    followed by an inquiry or trial. By its very nature,
    preventive detention is aimed at preventing the
    commission of an offence or preventing the detained
    person from achieving a certain end. The authority
    making the order therefore cannot always be in
    possession of full detailed information when it
    passes the order and the information in its
    possession may fall far short of legal proof of any
    specific offence, although it may be indicative of a
    strong probability of the impending commission of a
    prejudicial act. Section a of the Preventive Detention
    Act
    therefore requires that the Central Government
    or the State Government must be satisfied with
    respect to any person that with a view to preventing
    him from acting in any manner prejudicial to (1) the

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    defence of India, the relations of India with foreign
    powers, or the security of India, or (2) the security of
    the State or the maintenance of public order, or (3)
    the maintenance of supplies and services essential
    to the community ……… it is necessary So to do,
    make an order directing that such person be
    detained. According to the wording of section 3,
    therefore, before the Government can pass an order
    of preventive detention it must be satisfied with
    respect to the individual person that his activities
    are directed against one or other of the three objects
    mentioned in the section, and that the detaining
    authority was satisfied that it was necessary to
    prevent him from acting in such a manner. The
    wording of the section thus clearly shows that it is
    the satisfaction of the Central Government or the
    State Government on the point which alone is
    necessary to be established. It is significant that
    while the objects intended to be defeated are
    mentioned, the different methods, acts or omissions
    by which that can be done are not mentioned, as it is
    not humanly possible to give such an exhaustive list.
    The satisfaction of the Government however must be
    based on some grounds. There can be no satisfaction
    if there are no grounds for the same. There may be a
    divergence of opinion as to whether certain grounds
    are sufficient to bring about the satisfaction
    required by the section. One person may think one
    way, another the other way. If, therefore, the
    grounds on which it is stated that the Central
    Government or the State Government was satisfied
    are such as a rational human being can consider
    connected in some manner with the objects which
    were to be prevented from being attained, the
    question of satisfaction except on the ground of
    mala fides cannot be challenged in a court. Whether
    in a particular case the grounds are sufficient or
    not, according to the opinion of any person or body
    other than the Central Government or the State
    Government, is ruled out by the wording of the
    section. It is not for the court to sit in the place of
    the Central Government or the State Government and
    try to deter- mine if it would have come to the same

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    conclusion as the Central or the State Government.
    As has been generally observed, this is a matter for
    the subjective decision of the Government and that
    cannot be substituted by an objective test in a court
    of law. Such detention orders are passed on
    information and materials which may not be strictly
    admissible as evidence under the Evidence Act in a
    court, but which the law, taking into consideration
    the needs and exigencies of administration, has
    allowed to be considered sufficient for the subjective
    decision of the Government.”

    14. In accordance with the legal position, afore-stated, settled by

    the Six-Judge Constitution Bench way back in the year

    1951, the scope of looking into the manner in which the

    subjective satisfaction is arrived at by the detaining authority,

    is limited. This Court, while examining the material, which is

    made basis of subjective satisfaction of the detaining

    authority, would not act as a court of appeal and find fault

    with the satisfaction on the ground that on the basis of the

    material before detaining authority another view was possible.

    15. The courts do not even go into the questions as to whether the

    facts mentioned in the grounds of detention are correct or

    false. The reason for the rule is that to decide this, evidence

    may have to be taken by the courts and that it is not the

    policy of the law of preventive detention. This matter lies

    within the competence of the advisory board.

    16. Those who are responsible for national security or for

    maintenance of public order must be the sole judges of what

    the national security, public order or security of the State

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    requires. 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. Justification for such detention is suspicion

    or reasonable probability and not criminal conviction, which

    can only be warranted by legal evidence. Thus, any preventive

    measures, even if they involve some restraint or hardship

    upon individuals, as held by the Supreme Court in the case

    „Ashok Kumar v. Delhi Administration & Ors., AIR 1982

    SC 1143‟, do not contribute in any way of the nature of

    punishment.

    17. Observing that the object of preventive detention is not to

    punish a man for having done something but to intercept and

    to prevent him from doing so, the Supreme Court held in the

    case “Naresh Kumar Goyal v. Union of India & Ors., 2005

    (8) SCC 276″, and reiterated in the judgment in a case titled

    Union of India & Anr. v. Dimple Happy Dhakad (AIR 2019

    SC 3428)” that an order of detention is not a curative or

    reformative or punitive, but a preventive action, acknowledged

    object of which being to prevent anti-social and subversive

    elements from endangering the welfare of the country or

    security of the nation or from disturbing public tranquility or

    from indulging in anti-national activities or smuggling

    activities or from engaging in illicit traffic in narcotic drugs

    and psychotropic substances, etc. Preventive detention is

    devised to afford protection to society. Rulings on the subject

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    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.

    18. In view of the foregoing discussion and the settled legal

    position, impugned detention order is upheld and the petition

    is found devoid of any merit and is, accordingly, dismissed

    along-with pending application(s).

    19. Photocopy of the record, as produced, be returned to learned

    counsel for respondents.

    (M A CHOWDHARY)
    JUDGE
    JAMMU
    13.07.2026
    Naresh/Secy.

              Whether the order is reportable:      Yes
              Whether the order is speaking:        Yes
    
    
    
    
    HCP No.159/2025                                       Page 14 of 14
     



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