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
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 andHCP No.159/2025 Page 6 of 14
2026:JKLHC-JMU:2066Debu 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) theHCP No.159/2025 Page 10 of 14
2026:JKLHC-JMU:2066defence 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 sameHCP No.159/2025 Page 11 of 14
2026:JKLHC-JMU:2066conclusion 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
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