Jammu & Kashmir High Court – Srinagar Bench
Irfan Ahmad Kuttay vs Union Territory Of J&K Through on 20 May, 2026
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 171/2025
Reserved on: 14.05.2026
Pronounced on: 20.05.2026
Uploaded on: 20.05.2026
Whether the operative part or full
judgment is pronounced- Full
Irfan Ahmad Kuttay
S/O Gulshan Ahmad Kuttay,
R/O Chotipora,
District Shopian.
...Petitioner(s)
Through: Adv. Rehana Fayaz.
Vs.
1. Union Territory of J&K through
Commissioner/Secretary to Govt.,
Home Department,
Civil Sectt. Srinagar.
2. District Magistrate, Shopian.
3. Senior Superintendent of Police,
Shopian.
4. Superintendent Central Jail,
Jammu.
...Respondent(s)
Through: Dy.AG Bikramdeep Singh.
CORAM: HON'BLE MR. JUSTICE M. A.CHOWDHARY, JUDGE
JUDGMENT
1. Through the medium of the present petition filed under Article
226 of the Constitution of India, the petitioner seeks quashment
of Detention Order No. 02/DMS/PSA of 2025 dated 28.04.2025
passed by respondent No. 2-District Magistrate Shopian under
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the provisions of the Jammu and Kashmir Public Safety Act
1978, whereby the detenue has been placed under preventive
detention in order to deter him from acting in any manner
prejudicial to the ‘security of the State/UT’.
2. The impugned detention order has been challenged primarily on
the grounds that:
(i) the detaining authority has relied upon old FIRs/cases in which
the detenue already stands admitted to bail;
(ii) the grounds of detention are vague and general in nature;
(iii) the material relied upon has not been supplied to the
detenue;
(iv) the detenue had earlier been bound down under Section
107/151 Cr.P.C. (now Section 126/170 BNSS), yet the same
has wrongly been used against him;
(v) there has been non-application of mind on the part of the
detaining authority; and
(vi) the representation submitted by the detenue was neither
properly considered nor communicated.
3. Learned counsel for the petitioner submits that the detenue had
been arrested in cases registered vide FIR Nos. 09/2019,
15/2019 and 07/2020 and in both the aforesaid cases he has
been enlarged on bail by the competent court of law; that once
the detenue was granted bail, the preventive detention could not
have been resorted to, on the basis of the very same allegations;
that the allegations made in the grounds of detention are vague,
bereft of particulars and no proximate live link exists between the
alleged activities and the order of detention.
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4. Per contra, learned counsel appearing for the respondents
submits that the detenue is an OGW (Over Ground Worker) of
terrorists and has been continuously involved in activities
prejudicial to the security of the State/UT; that the detenue has
been providing logistic support and assistance to militants and
his activities posed a serious threat to public order and security;
that all the material relied upon by the detaining authority
including copies of FIRs, dossier and grounds of detention were
furnished to the detenue against proper receipt and the grounds
were also read over and explained to him in the language
understood by him.
5. Heard learned counsel for the parties, perused the pleadings and
gone through the detention record produced by the respondents.
6. The detention record reveals that the detenue has remained
involved in FIR No. 09/2019 u/s 148, 149, 336, 353, 307 RPC;
FIR No. 15/2019 u/s 148, 149, 332, 336, 353, 307 RPC; and FIR
No. 07/2020 u/s 13, 39 ULA(P) Act, 7/25 Indian Arms Act, all
registered at Police Station Imamsahib. The grounds of detention
reflect that the detenue was working as an OGW of terrorists and
was facilitating militant activities in the area by providing active
support and assistance to them.
7. The first contention of learned counsel for the petitioner that the
detenue had already been granted bail in the aforesaid FIRs and,
therefore, preventive detention could not have been passed, is
without merit. Preventive detention and prosecution in criminal
law operate in different fields. The object of preventive detention
is not to punish a person for an offence already committed, but to
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prevent him from indulging in activities prejudicial to the security
of the State/UT and maintenance of public order in future. The
plea that stale and old cases of the years 2019 and 2020 have
been based to order detention is not tenable, as the reference to
those cases has been made to indicate antecedents of the
detenue and while making such reference, his other activities as
‘OGW’ to provide logistic support to the terrorists of the
proscribed organizations, have been made grounds to pass the
impugned order.
8. Merely because a detenue has been admitted to bail in criminal
cases would not debar the competent authority from passing an
order of preventive detention if the authority is satisfied that his
activities are prejudicial to public order or security of the
State/UT. In Haradhan Saha v. State of West Bengal & Ors.,
reported as AIR 1975 SC 2150, the Hon’ble Supreme Court held
that preventive detention is qualitatively different from punitive
detention and the pendency of prosecution or grant of bail does
not invalidate an order of preventive detention. The Court held
that:-
“…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
prevent him for doing it. The basis of detention
is the satisfaction of the Executive of a
reasonable probability of likelihood of the
detenue acting in a manner similar to his past
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acts and preventing him by detention from
doing the same…”
Similarly, in Government of Andhra Pradesh v. Mohd.
Nasrullah Khan reported as (2006) 2 SCC 373, the Hon’ble
Supreme Court observed that even if a person is enlarged on
bail, preventive detention can validly be passed if the detaining
authority is satisfied that there is likelihood of the detenue
indulging in prejudicial activities.
9. The contention of learned counsel for the petitioner regarding
vagueness of grounds also does not deserve acceptance. A
perusal of the grounds of detention demonstrates that the
detaining authority while making reference to the involvement of
the detenue in the aforesaid FIRs, has narrated his role,
thereafter, as an OGW of terrorists. The grounds contain
sufficient particulars enabling the detenue to make an effective
and meaningful representation against the order of detention.
10. The detention record further reveals that the grounds of
detention, notice of detention, copies of FIRs, detention order,
statements of witnesses and other material (total 55 leaves)
relied upon by the detaining authority were supplied to the
detenue and the same were read over and explained to him in
the language understood by him. The execution report bears the
signatures of the detenue acknowledging receipt thereof. Thus,
the plea that relevant material was not supplied is contradicted by
the official record. In State Legal Aid Committee, J&K v. State
of J&K reported as 2005 (II) SLJ 486, it has been held that
where the record demonstrates supply of material and
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communication of grounds to the detenue, the requirement of
Article 22(5) of the Constitution stands satisfied. Relevant part of
the judgment is reproduced hereunder:-
“…Where the record demonstrates that the
grounds of detention and material relied upon
were furnished to the detenue and explained to
him in the language understood by him the
constitutional requirement under Article 22(5)
stands complied with…”
11. The argument regarding non-application of mind is equally
misconceived. The detention order reflects due awareness on the
part of the detaining authority regarding the involvement of the
detenue in anti-national activities and the necessity to prevent
him from acting in any manner prejudicial to the security of the
State/UT. The subjective satisfaction recorded by the detaining
authority cannot be substituted by this Court unless shown to be
based on no material or suffering from patent illegality.
12. So far as the plea regarding representation is concerned, the
record produced by the respondents demonstrates that the
representation submitted by the detenue was considered by the
competent authority and the same came to be rejected. Merely
because the representation was rejected does not render the
detention illegal. The procedural safeguards contemplated under
law stand complied with.
13. The Hon’ble Supreme Court in Pebam Ningol Mikoi Devi v.
State of Manipur reported as (2010) 9 SCC 618, held that
judicial review in matters of preventive detention is limited to
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examining the procedural safeguards and existence of material
for subjective satisfaction of the detaining authority. The Court
observed as under:-
“…The Court cannot sit in appeal over the
subjective satisfaction arrived at by the
detaining authority except on limited grounds
such as non application of mind, mala fides, or
non compliance with procedural safeguards…”
14. The cumulative material placed before the detaining authority
clearly reflects that the detenue was involved in activities
prejudicial to the security of the State/UT and was acting as an
‘OGW’ of terrorists. The detaining authority, on the basis of the
material placed before it, arrived at the requisite subjective
satisfaction for passing the order of detention. This Court does
not find any constitutional or statutory infirmity in the impugned
order.
15. Viewed thus, the petition is found devoid of merit and, is,
accordingly, dismissed. The impugned detention order is
upheld.
16. Scanned detention record is directed to be sent back.
( M. A. CHOWDHARY )
JUDGE
Srinagar
20.05.2026
Muzammil. Q
Whether the order is reportable: Yes / No
