Jammu & Kashmir High Court
Reserved On: 16.07.2026 vs Unknown on 20 July, 2026
2026:JKLHC-JMU:2176
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 133/2025
Reserved on: 16.07.2026
Pronounced on: 20.07.2026
Uploaded on: 20.07.2026
Whether the operative part or full
judgment is pronounced: Full
Mohd. Qasim, ...Petitioner(s)
S/O Late Talib Hussain,
At present Central Jail, Jammu,
Through brother Jamat Ali.
S/O Late Talib Hussain,
R/O Gondha, Tehsil Khwas,
District Rajouri.
Through: Mr. Sanchit Verma, Advocate.
Vs.
1. UT of Jammu & Kashmir through
Commissioner/Secretary (Home),
Civil Secretariat, Jammu/Srinagar.
2. District Magistrate, Rajouri.
3. Senior Superintendent of Police, Rajouri.
4. Superintendent, Central Jail, Jammu.
Respondent(s)
Through: Mr. Dewakar Sharma, Dy. AG
CORAM: HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
01. Through the medium of this Habeas Corpus Petition, filed
through his brother Jamat Ali, the petitioner-Mohd.
Qasim (hereinafter called „detenue‟) seeks quashment of
Order No. DMR/PSA/04 of 2025 dated 17.05.2025
(hereinafter called „detention order‟) passed by the
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respondent No. 2-District Magistrate, Rajouri (hereinafter
called „detaining authority‟) whereby and whereunder in
terms of Section 8 of the Jammu and Kashmir Public
Safety Act (for short, PSA), he had been ordered to be
detained under preventive detention.
02. The impugned detention order has been challenged
mainly on the grounds, firstly that there is no proximate
link between the prejudicial activities and the detention
order, secondly that the detenue has already been
enlarged on bail in the case mentioned in the grounds of
detention, thirdly that the detenue has not been informed
about his right to make effective representation to the
Government as well as to the detaining authority.
03. Pursuant to notice, the respondent No. 2 has filed the
counter affidavit, asserting therein that the detention
order was passed after careful consideration of the
dossier submitted by the Sr. Superintendent of Police,
Rajouri; that the detaining authority applied its mind to
the material facts and arrived at a subjective satisfaction
that the detenue’s activities were prejudicial to the
security of the State; that mere grant of bail in any earlier
case does not, in any manner, dilute or negate the
detenue’s continuous involvement in activities prejudicial
to the security of the State; that all the relevant
documents have been provided to the detenue and he has
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also been informed about his right to make a
representation to the Government as well as to the
detaining authority. Lastly, he has argued that the
impugned detention order be upheld and the petition
filed by the detenue, being devoid of any merit and
substance, be rejected.
04. Heard learned counsel for the parties, perused the
detention record and considered.
05. Detenue was ordered to be detained in preventive custody
vide impugned order, conveyed to him vide
communication dated 17.05.2025, informing him that he
can make a representation against the detention order to
the Government, if he so desired.
06. The impugned detention order was passed by District
Magistrate to prevent the detenue from the anti-social
activities, highly prejudicial to the maintenance of
security of the State, while making reference to his earlier
involvement, for commission of offence under Section
212 of IPC in a case registered at Police Station, Budhal
vide FIR No. 87/2023, with the accusation that he was
found to have provided shelter to the terrorists, who had
fired upon a Police party, and in the encounter, an
unknown terrorist was killed on 06.08.2023 and that he
was on the rolls of OGWs of Police Station, Manjakote.
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Besides, five DDRs dated 25.04.2024, 11.09.2024,
27.11.2024, 23.12.2024 & 10.04.2025, recorded at Police
Station, Budhal revealing that the detenue was working
as OGW for terrorists, providing them all sorts of logistic
support and shelter.
07. So far as the first ground of challenge that the detention
order in question was based on stale reference of FIR of
2023 is concerned, the detaining authority ought to have
considered this aspect of the matter while passing the
impugned detention order inasmuch as the detenue’s
involvement has been shown in the said FIR, which ex
facie shows that this FIR, by all stretch of reference, is
too remote to be a live link to consider a case of
preventive detention of a person to be passed in the year
2025, and is stale reference to have any nexus with the
grounds of detention forming basis for subjecting the
detenue to preventive detention custody.
08. In the case of “Sama Aruna Vs State of Telangana & Ors.,”
reported in (2018) 12 SCC 150 against a detention
order dated 23.11.2016 upheld by the High Court, the
Hon’ble Supreme Court of India in an appeal came to
consider the relevance of 9 to 14 years’ old incidents
resulting in FIRs, through a grossly belated order of
detention. Paragraphs No. 16 & 17, being relevant are
extracted as under:-
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“16. Obviously, therefore, the power to detain, under
the Act of 1986, can be exercised only for preventing a
person from engaging in, or pursuing or taking some
action which adversely affects or is likely to affect
adversely the maintenance of public order; or for
preventing him from making preparations for engaging in
such activities. There is little doubt that the conduct or
activities of the detenu in the past must be taken into
account for coming to the conclusion that he is going to
engage in or make preparations for engaging in such
activities, for many such persons follow a pattern of
criminal activities. But the question is how far back?
There is no doubt that only activities so far back can be
considered as furnish a cause for preventive detention in
the present. That is, only those activities so far back in
the past which lead to the conclusion that he is likely to
engage in or prepare to engage in such activities in the
immediate future can be taken into account. In Golam
Hussain alias Gama v. Commissioner of Police, Calcutta
and Ors. (1974)4 SCC 530, this Court observed as follows:
“5. No authority, acting rationally, can be satisfied,
subjectively or otherwise, of future mischief merely
because long ago the detenu had done something evil To
Rule otherwise is to sanction a simulacrum of a
statutory requirement. But no mechanical test by
counting the months of the interval is sound. It all
depends on the nature of the acts relied on, grave and
determined or less serious and corrigible, on the length
of the gap, short or long, on the reason for the delay in
taking preventive action, like information of
participation being available only in the course of an
investigation. We have to investigate whether the causal
connection has been broken in the circumstances of
each case.
Suffice it to say that in any case, incidents which are
said to have taken place nine to fourteen years earlier,
cannot form the basis for being satisfied in the present
that the detenu is going to engage in, or make
preparation for engaging in such activities.
17. We are, therefore, satisfied that the aforesaid
detention order was passed on grounds which are stale and
which could not have been considered as relevant for arriving
at the subjective satisfaction that the detenu must be
detained. The detention order must be based on a reasonable
prognosis of the future behavior of a person based on his
past conduct in light of the surrounding circumstances. The
live and proximate link that must exist between the past
conduct of a person and the imperative need to detain him
must be taken to have been snapped in this case. A
detention order which is founded on stale incidents,
must be regarded as an order of punishment for a crime,
passed without a trial, though purporting to be an order
of preventive detention. The essential concept of
preventive detention is that the detention of a person is
not to punish him for something he has done but to
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2026:JKLHC-JMU:2176prevent him from doing it. See G. Reddeiah v.
Government of Andhra Pradesh and Anr. (2012) 2 SCC
389, and P.U. Iqbal v. Union of India and Ors. (1992) 1
SCC 434.”
In the case of “Khaja Bilal Ahmed Vs State of Telangana &
Ors.,” (2020) 13 SCC 632 the Hon’ble Supreme Court of
India again came up dealing with the case of preventive
detention based upon stale grounds. In this case, the
Hon’ble Supreme Court of India making reference to its
judgment in the case of Sama Aruna Vs State of
Telangana & Ors. (supra), held in paragraph No. 23, which
is beneficially extracted as follows:-
“………………….The satisfaction to be arrived at by the
detaining authority must not be based on irrelevant or
invalid grounds. It must be arrived at on the basis of
relevant material; material which is not stale and has a
live link with the satisfaction of the detaining authority.
The order of detention may refer to the previous criminal
antecedents only if they have a direct nexus or link with
the immediate need to detain an individual. If the
previous criminal activities of the appellant could
indicate his tendency or inclination to act in a manner
prejudicial to the maintenance of public order, then it
may have a bearing on the subjective satisfaction of the
detaining authority. However, in the absence of a clear
indication of a causal connection, a mere reference to the
pending criminal cases cannot account for the
requirements of Section 3. It is not open to the detaining
authority to simply refer to stale incidents and hold
them as the basis of an order of detention. Such stale
material will have no bearing on the probability of the
detenu engaging in prejudicial activities in the future.”
09. Second ground of challenge is that the detenue has
already been enlarged on bail in the case mentioned in
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the grounds of detention at the time of issuance of
impugned detention order. The fact that the detenue had
already been enlarged on bail in the case relied upon in
the grounds of detention does not justify prevention
detention. Preventive detention cannot be used as a
substitute for the ordinary criminal law or to nullify a
judicial order granting bail. Once a competent criminal
court has enlarged the detenue on bail, the detaining
authority was required to demonstrate, on the basis of
cogent and fresh material, that despite the bail order
there existed a real and imminent possibility of the
detenue engaging in activities prejudicial to public order,
necessitating preventive detention. In the absence of such
compelling reasons, the detention order cannot be
sustained in law and deserves to be quashed and set
aside.
10. So far as third ground of challenge that the detenue has
not been informed about his right to make effective
representation to the Government as well as to the
detaining authority, it is established from the perusal of
record that detaining authority has not mentioned either
in the detention order or in the grounds of detention
about the right of the detenue to make a representation
to the detaining authority. The detaining authority, as
noticed earlier had informed detenue that he may make
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representation to the Government, but omitted to inform
that such a representation can be made to the detaining
authority, in communication dated 17.05.2025 addressed
to the detenue. The same constitutes a violation of Article
22(5) of the Constitution. The constitutional guarantee of
making a representation is meaningful only when the
detenue is clearly informed of the authorities before
whom such representation can be made and the earliest
opportunity to exercise that right. Non-communication of
this valuable constitutional right deprives the detenue of
an effective opportunity to challenge the detention at the
earliest stage, thereby vitiating the detention order. Since
the procedural safeguards governing preventive detention
are mandatory and must be strictly complied with, such
omission vitiates the detention order illegal and liable to
be set aside.
11. On perusal of the grounds of detention, it reveals that the
detaining authority has passed the order, without
application of mind, stating that detenue was on OGW
roll of P/S Manjakote, there being no supporting material
and the DDRs recorded at P/S, Budhal also do not
indicate any specific prejudicial activity attributed to the
detenue, except general and vague assertions, against
which even no representation could be made. The only
case registered vide an FIR in the year 2023, as
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discussed earlier was also remote in time to base
impugned detention order.
12. As a sequel to the aforementioned discussion and
observations made hereinabove, the present petition is
allowed. Consequently, impugned detention order is
quashed. The detenue is directed to be released forthwith
if not required in any other case(s). The detention record
be returned to the learned counsel for the respondents.
13. Disposed of accordingly.
(M A CHOWDHARY)
JUDGE
JAMMU
20.07.2026
Naresh/Secy.
Whether order is speaking: Yes
Whether order is reportable: Yes
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