Jammu & Kashmir High Court – Srinagar Bench
Maqsad Ali Kohli vs ) Union Territory Of J&K on 20 April, 2026
Page 1 of 16 HCP 169/2024
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP 169/2024 Reserved on:
CM(2887/2024) CM (381/2025)
Reserved on : 09.04.2026
Pronounced on: 20.04.2026
Uploaded on: 21.04.2026
Whether the operative part or full judgment is
pronounced: Full
Maqsad Ali Kohli ..... Petitioner(s)
S/o Maqsood Ali,
R/o Navarunda Tehsil Uri
District Baramulla
Through his brother namely
Mumtaz Ali Kohli aged 46
years
Through :- Mr. G.M Shah , Advocate
Vs
1) Union Territory of J&K .....Respondent(s)
through Principal Secretary to
Government Home
Department, J&K, Civil
Sectt. Srinagar.
2) District Magistrate,
Baramulla.
3) Sr. Superintendent of Police,
Baramulla.
4) Superintendent of Central
Jail, Kote Bhalwal Jammu
5) Station House Officer
Police Station, Uri, District
Baramulla
Through :- Mr. Hakim Aman Ali, AAG
CORAM: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
PRAYER
1) The instant petition has been preferred by the detenue through his
brother namely Mumtaz Ali Kohli, under Article 226 of the Constitution
of India, wherein following reliefs have been sought:
Page 2 of 16 HCP 169/2024
(i) A WRIT OF CERTIORARI, may be issued and the impugned
Detention Order passed by the Respondent No, 2 Vide order No.
30/DMB/PSA/2024 Dated 19.04.2024 may be quashed alongwith
confirmation order, if any, passed against the detenue.
(ii) A WRIT OF MANDAMUS may be issued and the Respondents
may be commanded to set the detenue namely Maqsad Ali Kohli, aged
34 years. S/O Maqsood Ali R/O Navarunda Tehsil Uri District
Baramulla at liberty forthwith.
(iii) A WRIT OF MANDAMUS, commanding the respondents to pay
the exemplary damages to the tune of Rs. 50,000/- and be commanded
to compensate the detenue for being in illegal detention to the tune of
Rs. 20.00 lacs.
(iv) Any other Writ, Order or Direction which this Hon’ble Court
may deem fit and proper in given circumstances of the case may be
issued in favour of the Petitioner
BRIEF FACTS
2) The present Habeas Corpus Petition has been filed challenging the detention
of the detenue under Order No. 30/DMB/PSA/2024 dated 19.04.2024,
passed by the District Magistrate, Baramulla, in exercise of powers under
Section 8 of the J&K Public Safety Act, 1978.
3) The detention order is stated to have been passed on the basis of a dossier
submitted by the Senior Superintendent of Police, Baramulla, alleging that
the detenue was involved in activities prejudicial to the security of the State.
Pursuant to the said order, the detenue was taken into custody and is
presently lodged in Central Jail, Kot Bhalwal, Jammu. Aggrieved thereof,
the petitioner has filed the present petition seeking quashment of the
detention order.
SUBMISSIONS ON BEHALF OF THE PETITIONER
4) Learned counsel for the petitioner submits that the impugned detention order
is illegal, arbitrary, and violative of constitutional safeguards.
5) It is contended that the grounds of detention are vague, baseless, and lacking
any proximate nexus with the object sought to be achieved. The detenue has
not been shown to be involved in any act, and no FIR or criminal case has
Page 3 of 16 HCP 169/2024
been registered against him. The allegations are stated to be based on mere
assumptions and conjectures.
6) It is further submitted that there has been total non-application of mind on
the part of the detaining authority, as the grounds of detention are a verbatim
reproduction of the police dossier, thereby demonstrating absence of
independent satisfaction.
7) The Learned counsel further submits that the material relied upon, including
the dossier, FIRs, and statements, was not furnished to the detenue, thereby
depriving him of his valuable right to make an effective representation under
Article 22(5) of the Constitution of India.
8) It is also urged that the detenue is illiterate and not conversant with the
English language, yet the grounds of detention were supplied in English
without providing any translated version, rendering the right of
representation illusory.
9) Another limb of argument advanced by the learned counsel is that the
detenue was not informed of his right to make a representation to the
appropriate authority at the time of execution of the detention order, which
vitiates the detention. It is further submitted that the detention order is based
on an apprehension relating to forthcoming Parliamentary Elections, which
has since ceased to exist, thereby rendering the detention stale and without
live nexus.
10) Learned counsel also contends that procedural safeguards under the
Public Safety Act, including timely approval by the Government and
compliance with statutory requirements, have not been adhered to in their
true spirit. On these grounds, it is prayed that the impugned detention order
be quashed and the detenue be set at liberty.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
11) Per contra, learned counsel for the respondents submits that the
detention order has been passed strictly in accordance with law and does not
warrant interference. It is contended that preventive detention is a
precautionary measure intended to prevent a person from acting in a manner
prejudicial to the security of the State, and is not punitive in nature. The
detaining authority, upon due consideration of the material placed before it,
arrived at the requisite subjective satisfaction.
Page 4 of 16 HCP 169/2024
12) It is submitted that the detenue was actively involved in anti-national
activities and was working as an Over Ground Worker (OGW) for terrorist
outfits, providing logistical support and maintaining links with militants and
cross-border handlers. His activities posed a serious threat to the security of
the State.
13) Learned counsel submits that the grounds of detention are precise,
relevant, and based on credible material. The detaining authority has applied
its independent mind and the allegation of mechanical reproduction of the
dossier is denied.
14) It is further submitted that all the material relied upon, including the
grounds of detention and supporting documents, was duly furnished to the
detenue and explained to him in a language understood by him. The detenue
acknowledged the same by affixing his signature.
15) It is also contended that the detenue was informed of his right to make
a representation to the Government as well as to the detaining authority.
Learned counsel submits that the detention order was duly approved by the
Government within the statutory period and thereafter confirmed upon the
opinion of the Advisory Board, which found sufficient cause for detention.
16) It is argued that the scope of judicial review in preventive detention
matters is limited, and the Court cannot sit in appeal over the subjective
satisfaction of the detaining authority.
17) Reliance is placed on settled legal principles to contend that even a
single act or credible input indicating threat to security is sufficient to justify
preventive detention. On these grounds, it is prayed that the writ petition be
dismissed.
LEGAL ANALYSIS
18) Heard learned counsel for the parties at length, perused the material
on record, and examined the detention record produced by the respondents ,
this Court proceeds to consider the validity of the impugned order of
detention.
19) At the outset, it needs to be emphasized that an order of preventive
detention results in a serious encroachment upon the personal liberty of an
individual, which stands guaranteed under Article 21 of the Constitution of
India and is further protected by the procedural safeguards enshrined under
Article 22(5). Though the Constitution permits preventive detention, such
Page 5 of 16 HCP 169/2024
power is an exceptional one, and must be exercised strictly in accordance
with the safeguards provided under the Constitution and the governing
statute.
20) It is trite law that the liberty of a citizen cannot be interfered with,
and any curtailment thereof must satisfy the test of fairness, reasonableness,
and legality. The procedural safeguards provided are not mere formalities
but are substantive protections, the breach whereof would render the
detention illegal.
21) Preventive detention, by its very nature, is not punitive but preventive.
It is not aimed at punishing an individual for past conduct but is intended to
prevent him from acting in a manner prejudicial to the security of the State
or maintenance of public order.
22) The Hon’ble Apex Court in Rekha v. State of T.N., (2011) 5 SCC
244, has held that:
“it is all very well to say that preventive detention is preventive
not punitive”
23) The foundation of such detention rests upon the subjective satisfaction
of the detaining authority. However, such satisfaction cannot be arbitrary or
mechanical. It must be based on relevant, cogent, and proximate material,
having a rational nexus with the object sought to be achieved.
24) The Hon’ble Supreme Court in Khudiram Das v. State of West
Bengal reported as (1975) 2 SCC 81,has authoritatively held that:
The only thing which it intended to emphasise was that the
detaining authority must exercise due care and caution and act
fairly and justly in exercising the power of detention.
But that does not mean that the subjective satisfaction of the
detaining authority is wholly immune from judicial
reviewability. The Courts have by judicial decisions carved out
an area, limited though it be, within which the validity of the
subjective satisfaction can yet be subjected to judicial scrutiny.
Page 6 of 16 HCP 169/2024
25) Further, the Division Bench of this Court in Athar Mushtaq Khan vs
Union Territory of J&K & Ors. reported as 2024 SCC online J&K 175
(decided on 26.03.2024) has also observed that:
28. There is no doubt that the Courts cannot, on a review of the
grounds, substitute its own opinion for that of the detaining
authority, and cannot act as a court of appeal, it is solely the
domain of the detaining authority to reach to a subjective
satisfaction. However, this does not mean that the subjective
satisfaction of the detaining authority is wholly immune from
judicial reviewability. The courts have by judicial decisions
carved out an area, limited though it be, within which the validity
of the subjective satisfaction can yet be subjected to judicial
scrutiny.
26) It has been further held that the subjective satisfaction must not be a
mere assertion of the authority, but must be founded on material which has a
reasonable nexus with the purpose of detention.
27) In the considered opinion of this Court, while it is not open to the
Court to sit in appeal over the satisfaction recorded by the detaining
authority, it is nevertheless the constitutional obligation of this Court to
ensure that such satisfaction is not illusory, mechanical, or based on non-
existent material.
28) The power of preventive detention, being drastic in nature, casts a
corresponding duty upon the detaining authority to exercise the same with
due care, caution, and circumspection. The safeguards provided under the
Constitution and the statute are not empty formalities but constitute the only
bulwark against arbitrary detention.
29) This Court cannot act as a mute spectator ,where the liberty of a
citizen is curtailed without strict adherence to the mandate of law. If the
subjective satisfaction is found to be based on vague, irrelevant, or
insufficient material, or if the procedural safeguards have not been strictly
followed, the detention order cannot be sustained.
30) Thus, the impugned order is required to be tested on the touchstone of
the constitutional safeguards, and any deviation therefrom would render the
detention legally unsustainable.
Page 7 of 16 HCP 169/2024
31) The law is well settled that the grounds of detention must be clear,
specific and unambiguous, so as to enable the detenue to make an effective
representation as guaranteed under Article 22(5) of the Constitution of India.
The requirement is not a mere formality but a substantive safeguard, the
non-compliance whereof strikes at the root of the detention. The detenue
must be apprised of definite particulars of the allegations, including the
nature of activities, relevant dates, places, and his specific role, so that he is
in a position to rebut the same effectively.
32) The Hon’ble Supreme Court in Prabhu Dayal Deorah Etc. Etc vs
The District Magistrate, Kamrup reported as (1974) 1 SCC 103, has held
that:
“Some vagueness seems often unavoidable and can almost
invariably be discovered if we search assiduously for it
among grounds of satisfaction relating to future course of
conduct of an individual about which the detaining authority
has to attempt a reasonable and honest forecast. It is only
where a vagueness or indefiniteness is disclosed which either
makes the satisfaction quite illusory and unreasonable or
which really disables a detenu from making an effective
representation that a detention is vitiated on such a ground.”
33) This Court in case titled Tariq Ahmad Napa v. UT of J&K, 2024
SCC OnLine J&K 283, decided on 30-04-2024 has observed that
24. It is manifest from the aforesaid observations of the
Supreme Court that if grounds of detention furnished by the
detaining authority are not capable of being intelligently
understood and sufficiently definite, so as to enable the
detenue to make an effective representation, the grounds of
detention may be termed as vague. In other words, the
detenue may be able to make an effective representation if the
details of the facts, on the basis of which conclusion is drawn
by the detaining authority, are furnished to him.
34) In the present case, a perusal of the grounds of detention, read in
conjunction with the dossier, reveals that the allegations against the detenue
are couched in general and sweeping terms, such as his alleged association
Page 8 of 16 HCP 169/2024
with anti-national elements, acting as an Over Ground Worker, and posing a
threat to the security of the State. However, there is a complete absence of
specific instances, dates, places, or particulars of any specific act attributable
to the detenue. The expressions used, such as “credible information” and
“deep-rooted connections”, are vague and do not disclose any concrete
material. Even the apprehension regarding disruption of the Parliamentary
Elections is speculative in nature, without any proximate or tangible basis.
Such generalized allegations fail to disclose a live and definite nexus
between the detenue’s alleged conduct and the necessity of his detention.
35) In the considered opinion of this Court, the grounds of detention in the
present case suffer from inherent vagueness and lack of material particulars,
thereby depriving the detenue of his valuable constitutional right to make an
effective representation. The failure to furnish precise and specific
allegations renders the detention legally unsustainable. It is trite that when
the foundation itself is vague, the superstructure built thereon cannot stand.
Accordingly, this Court holds that the impugned detention order stands
vitiated on account of vagueness of the grounds.
36) It is a settled principle of law that the detaining authority is required to
arrive at its own independent subjective satisfaction before passing an order
of preventive detention. The satisfaction must reflect due consideration of
the material placed before it and cannot be a mere mechanical endorsement
of the opinion of the sponsoring authority. The detaining authority is
expected to scrutinize the dossier, sift the relevant from the irrelevant, and
thereafter record its satisfaction based on its own assessment. Any failure to
do so renders the detention order vulnerable.
37) In Jai Singh v. State of Jammu & Kashmir,reported as (1985) 1
SCC 561 , the Hon’ble Supreme Court deprecated the practice of
reproducing the police dossier verbatim and held that
“First taking up the case of Jai Singh, the first of the petitioners
before us, a perusal of the grounds of detention shows that it is
a verbatim reproduction of the dossier submitted by the Senior
Superintendent of Police, Udhampur to the District Magistrate
requesting that a detention order may kindly be issued. At the
top of the dossier, the name is mentioned as Sardar Jail Singh,
father’s name is mentioned as Sardar Ram Singh and the
address is given as village Bharakh, Tehsil Reasi. Thereafter it
Page 9 of 16 HCP 169/2024
is recited “The subject is an important member of….”
Thereafter follow various allegations against Jai Singh,
paragraph by paragraph. In the grounds of detention, all that
the District Magistrate has done is to change the first three
words “the subject is” into “you Jai Singh, S/o Ram Singh,
resident of village Bharakh, S/o Ram Singh, resident of village
Bharakh, Tehsil Reasi”. Thereafter word for word the police
dossier is repeated and the word “he” wherever it occurs
referring to Jail Singh in the dossier is changed into „you‟ in
the grounds of detention. We are afraid it is difficult of find
greater proof of non-application of mind. The liberty of a 9
WP(Crl) No. 54/2020 subject is a serious matter and it is not to
be trifled with in this casual, indifferent and routine manner.”
38) This Court again in the case of Balbir Chand vs UT of J&K
reported as 2021 SCC OnLine J&K 630 decided on 01.09.2021 has held
that:
“13.Applying this settled legal position to the facts of the
present case, I find that the order impugned cannot stand as it is
based on grounds of detention, which is only verbatim copy of
police dossier. The order of detention, for the reasons, exhibit
total non application of mind on the part of detaining authority
and therefore, the petition is allowed.”
39) In the present case, a comparative reading of the dossier and the
grounds of detention reveals striking similarity in language, structure, and
content, leaving little doubt that the grounds are nothing but a reproduction
of the dossier. There is no independent analysis, reasoning, or application of
mind as apparent from the record. The detaining authority has failed to
indicate as to how and why it was satisfied that the detention of the detenue
was necessary, beyond merely reiterating the allegations contained in the
dossier. Such mechanical exercise of power defeats the very purpose of the
statutory requirement of subjective satisfaction.
40) In the considered view of this Court, the impugned detention order
suffers from complete non-application of mind, as the detaining authority
has failed to exercise its independent judgment and has instead mechanically
reproduced the contents of the police dossier. The subjective satisfaction
recorded, therefore, cannot be said to be genuine or legally sustainable. It is
Page 10 of 16 HCP 169/2024
trite that when the satisfaction itself is vitiated, the order founded thereon
cannot survive. Accordingly, the impugned detention order is liable to be
quashed on this ground alone.
41) It is a settled proposition of law that the right to make a representation
under Article 22(5) of the Constitution of India is a valuable constitutional
safeguard, and the same can be effectively exercised only when the detenue
is supplied with all the material relied upon by the detaining authority while
passing the detention order. The requirement of “communication of
grounds” is not confined merely to furnishing the grounds of detention, but
extends to supplying all documents, statements, and material forming the
basis of such grounds.
42) The Hon’ble Supreme Court in M.Ahamed Kutty Vs. Union of
India and another (1990) 2 SCC 1 has observed that:
“27..considering the facts in the instant case, the bail application
and the bail order were vital materials for consideration. If those
were not considered the satisfaction of the detaining authority
itself would have been impaired and if those had been considered,
they would be documents relied on by the detaining authority
though not specifically mentioned in the annexure to the order of
detention and those ought to have formed part of the documents
supplied to the detenu with the grounds of detention and without
them 4 the grounds themselves could not be said to have been
complete. We have, therefore, no alternative but to hold that it
amounted to denial of the detenu’s right to make an effective
representation and that it resulted in violation of Article 22(5) of
the Constitution of India rendering the continued detention of the
detenu illegal and entitling the detenu to be set at liberty in this
case.”
43) In the present case, though the respondents have asserted that the
material was supplied to the detenue, the record does not convincingly
demonstrate that all the relied upon documents, including the dossier and
other supporting material, were furnished to the detenue in a meaningful
manner. There is nothing on record to indicate that the detenue was provided
with complete material enabling him to effectively understand and rebut the
Page 11 of 16 HCP 169/2024
allegations. Mere assertions in the reply , unsupported by cogent proof,
cannot be accepted as sufficient compliance of the constitutional mandate.
44) In the considered opinion of this Court, the failure on the part of the
respondents to establish that the entire material relied upon was duly
furnished to the detenue has resulted in denial of his fundamental right to
make an effective representation under Article 22(5). Such non-compliance
strikes at the very root of the detention and renders the same legally
unsustainable.
45) It is a settled legal position that the detenue must be furnished with the
grounds of detention in a language which he understands, so as to enable
him to make an effective representation. The constitutional safeguard under
Article 22(5) is not satisfied by mere formal supply of documents; rather, the
communication must be real and meaningful. If the detenue is unable to
comprehend the contents of the grounds, the right to representation becomes
illusory.
46) The Hon’ble Supreme Court in Raziya Umar Bakshi vs Union Of
India & Ors reported as 1980 SCC(Cri) 846 , has held that
“the service of the grounds of detention on the detenu was a very precious
constitutional right and where the grounds were couched in a language
which was not known to the detenu, unless the contents of the grounds were
fully explained and translated to the detenu, it would tantamount to not
serving the grounds of detention to the detenu and would thus vitiate the
detention ex-facie.”
47) In the present case, it has been specifically pleaded that the detenue is
illiterate and not conversant with English, whereas the grounds of detention
were furnished in English. The respondents have not placed any convincing
material on record to demonstrate that the contents were translated and
explained in a language understood by the detenue in a meaningful manner.
48) In the considered view of this Court, mere oral explanation, without
proper proof and without furnishing translated copies, cannot be said to be
sufficient compliance. The failure to communicate the grounds in a language
understood by the detenue renders his right to representation ineffective.
Accordingly, the detention order stands vitiated on this ground.
49) It is well settled that there must be a live and proximate link between
the past conduct of the detenue and the necessity of preventive detention. If
Page 12 of 16 HCP 169/2024
the grounds are stale or based on remote or irrelevant considerations, the
detention cannot be sustained.
50) The Hon’ble Supreme Court in Khaja Bilal Ahmed vs The State Of
Telangana reported as (2020) 13 SCC 632 has been pleased to observe as
under:
“The detaining authority stated that the cases which were
registered against the appellant between 2009 and 2016
“are not at all considered for passing the detention order”
and were “referred by way of his criminal background
only”. This averment is plainly contradictory. The order
of detention does, as a matter of fact, refer to the criminal
cases which were instituted between 2007 and 2016. In
order to overcome the objection that these cases are stale
and do not provide a live link with the order of detention,
it was contended that they were not relied on but were
referred to only to indicate the antecedent background of
the detenu. If the pending cases were not considered for
passing the order of detention, it defies logic as to why
they were referred to in the first place in the order of
detention. The purpose of the Telangana Offenders Act
1986 is to prevent any person from acting in a manner
prejudicial to the maintenance of public order. For this
purpose, Section 3 prescribes that the detaining authority
must be satisfied that the person to be detained is likely to
indulge in illegal activities in the future and act in a
manner prejudicial to the maintenance of public order.
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
Page 13 of 16 HCP 169/2024
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.”
51) In the present case, the detention is sought to be justified on the
ground of apprehended disturbance to the 2024 Parliamentary Elections.
However, such apprehension appears to be speculative, and with the passage
of time, loses its relevance. No proximate or immediate act has been
attributed to the detenue to justify such apprehension.
52) This Court finds that the grounds lack proximity and are based on
mere apprehension rather than concrete material, thereby snapping the live
link required for sustaining preventive detention. On this ground as well, the
detention order cannot be sustained.
53) Preventive detention laws mandate strict adherence to procedural
safeguards, including timely communication of grounds, approval by the
Government, and reference to the Advisory Board. Any infraction, however
minor, vitiates the detention.
54) This court in case titled Sandeep Singh vs State Of J&K; And
Others decided on 21 July, 2017, has consistently held that:
To prevent misuse of this potentially dangerous power the
law of preventive detention has to be strictly construed
and meticulous compliance with the procedural
safeguards, however, technical, is, in our opinion,
mandatory and vital.
55) In the present case, though the respondents claim compliance, the
cumulative effect of deficiencies noted vagueness, non-supply of material,
non-application of mind, and lack of proper communication clearly indicates
substantial non-compliance.
Page 14 of 16 HCP 169/2024
56) This Court is of the considered opinion that the procedural safeguards
have not been adhered to in their true spirit. The detention order, therefore,
stands vitiated for violation of constitutional and statutory mandates.
CONCLUSION
62. In view of the foregoing discussion and upon a careful evaluation of the
material placed on record, this Court is of the considered opinion that the
impugned order of detention cannot be sustained in the eyes of law. The
grounds of detention, as noticed hereinabove, suffer from inherent
vagueness, absence of specific particulars, and lack of any proximate nexus
with the object sought to be achieved, thereby rendering the detenue
incapable of making an effective representation as guaranteed under Article
22(5) of the Constitution of India.
63. Further, the record reflects that the detaining authority has failed to arrive
at an independent and genuine subjective satisfaction, and has merely
reproduced the contents of the police dossier in a mechanical manner. Such
an exercise strikes at the very root of the statutory requirement and vitiates
the detention order.
64. Equally significant is the failure on the part of the respondents to
demonstrate that all the material relied upon was furnished to the detenue in
a meaningful manner, and in a language understood by him. This lapse has
resulted in denial of a valuable constitutional safeguard, thereby rendering
the right to representation illusory.
65. Moreover, the grounds of detention are found to be based on speculative
and stale considerations, lacking any live and proximate link with the
necessity of preventive detention. The apprehension projected by the
respondents does not rest on any tangible or concrete material so as to
justify the curtailment of personal liberty.
66.The cumulative effect of these infirmities vagueness of grounds, non-
application of mind, non-supply of material, failure of effective
communication, and absence of live nexus leads to an inevitable conclusion
that the detention order is legally unsustainable and violative of the
constitutional and statutory safeguards governing preventive detention.
Page 15 of 16 HCP 169/2024
67. This Court cannot countenance a situation where the liberty of a citizen is
curtailed in disregard of the mandate of law. The right to personal liberty
under Article 21 of the Constitution of India is sacrosanct and can be
deprived only in accordance with a procedure established by law which is
just, fair, and reasonable. The Hon’ble Supreme Court has, in a catena of
authoritative pronouncements, unequivocally held that the expression
“procedure established by law” does not connote any procedure, but one
that is right, just, and fair, and not arbitrary, fanciful, or oppressive, failing
which, it would be no procedure in the eye of law. Preventive detention
laws, though constitutionally permissible, are required to be strictly
construed and subjected to rigorous scrutiny on the touchstone of the
safeguards embodied in Articles 21 and 22 of the Constitution. It is equally
well settled that the procedural protections afforded to a detenue constitute
the only effective safeguard against arbitrary exercise of power, and any
infraction thereof strikes at the very root of the detention and renders it not
sustainable in the eyes of law. Preventive detention, being a drastic and
exceptional measure, must therefore withstand the judicial scrutiny, and
any deviation from the prescribed safeguards must accrue to the benefit of
the detenue.
68. However, in the present case, it becomes manifestly clear that the
procedural safeguards contemplated under Article 21 has not been adhered
to in its true letter and spirit and the liberty of the detenue, which stands
protected under Article 21 of the Constitution of India, has been curtailed
without strict adherence to the constitutional and statutory safeguards.
Personal liberty, being a most cherished right, cannot be interfered with
except by a procedure which is just, fair, and reasonable, and not arbitrary .
However, as demonstrated hereinabove, the detention of the detenue suffers
from multiple infirmities, including the vagueness of the grounds, absence
of specific particulars, non-application of mind, and failure to furnish the
complete material in a clear and understandable manner, clearly
demonstrate that the detenue has been deprived of his valuable
constitutional right to make an effective representation. In these
circumstances, the procedure adopted by the respondents cannot be said to
be just, fair or reasonable, within the meaning of under Article 21,
rendering the impugned detention not sustainable.
Page 16 of 16 HCP 169/2024
69. Accordingly, the impugned detention order bearing No. 30/DMB/PSA/2024
dated 19.04.2024, passed by the District Magistrate, Baramulla, is quashed.
The detenue shall be set at liberty forthwith, provided he is not required in
connection with any other case. The registry is directed to hand over the
record to learned counsel against proper receipt.
69. The petition is, accordingly, disposed of along with connected applications,
if any.
(WASIM SADIQ NARGAL)
JUDGE
Srinagar
20.04.2026
MUBASHIR Whether the order is speaking: Yes
Whether the order is reportable: Yes