Mohd Ayaz vs Ut Of J&K And Ors on 12 March, 2026

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    Jammu & Kashmir High Court

    Mohd Ayaz vs Ut Of J&K And Ors on 12 March, 2026

                                                                  Supple S-7
    
    
    
    
         IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
                               (Through Virtual Mode)
    
                                   HCP 96/2025
                                                        Pronounced on          12.03.2026.
                                                                Uploadedon 16.03.2026
    Mohd Ayaz
                                                ...Petitioner(s)/Appellant(s).
    Through:       Ms. Damini Singh Chouhan, adv.
    
                                         Vs.
    1. UT of J&K and ors
    
    
    
                                                                  ...Respondent(s).
    Through:      Mr. Deewaker Sharma, Dy AG
    CORAM:
           HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
                           JUDGMENT
    

    12.03.2026

    1. Impugned in the instant petition, filed under the provisions of

    SPONSORED

    Article 226 of the Constitution of India by the petitioner through his

    brother is an order of detention bearing No. DMP/PSA/05 of 2025 dated:

    11.06.2025 passed by the respondent No. 2 (hereinafter referred to as the

    ‘Detaining Authority’ for short), while invoking his powers under Section

    8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter

    referred to as the ‘Act’ for short), whereby the petitioner has been ordered

    to be detained with a view to prevent him from acting in any manner

    prejudicial to the maintenance of public order and lodged in the Central

    Jail Kot Bhalwal, Jammu. The petitioner-detenue has assailed the

    impugned detention order on the grounds, inter alia, that he is a citizen of

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    India and a domicile of UT of Jammu and Kashmir, as such, within his

    rights to seek the enforcement of his constitutional as well as other

    legal/statutory rights; that he is of the age of 49 years and a permanent

    resident of Buni Khet (Dhooni Khet) District, Poonch, who has been

    falsely branded as a habitual bovine smuggler for managing his preventive

    detention; that the impugned detention order has not been passed on any

    proximate or compelling necessity but on generalized and unverified

    allegations; that the grounds of detention reflect his involvement in three

    case FIR’s out of which two cases have been disposed of and other one

    FIR No.0061/2025 dated 05.05.2025 u/s 233 BNS of P/S Surankote, is

    pending investigation; that the ld. Detaining Authority has mechanically

    acted on the police dossier without conducting any independent verification

    or otherwise applying its own mind in respect of the matter; that even if the

    allegations against him are supposed to be true for arguments sake, they

    still pertain to law and order violations and not to acts prejudicial to public

    order as alleged; that he was not furnished with the complete set of the

    detention record which has made him unable to make a timely

    representation against his detention order; that his detention is punitive in

    nature and camouflaged as preventive; that the impugned detention order

    is vitiated by procedural irregularities, absence of subjective satisfaction

    and colourable exercise of power by the Detaining Authority which make

    the same unconstitutional, illegal and liable to be set aside; that the grounds

    of detention are the verbatim of police dossier thereby indicating the non-

    application of mind by the learned Detaining Authority and that his illegal

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    and unjustified detention tantamounts to the infringement of his

    Fundamental Right to Life and Liberty guaranteed under Article 21 of the

    Constitution of India.

    2. The respondents through their counter affidavit filed by the learned

    Detaining Authority i.e. respondent No. 2 resisted the instant petition on

    the grounds that none of the legal, fundamental or statutory rights of the

    petitioner-detenue have been infringed and the petition is utterly

    misconceived, false and frivolous deserving its dismissal. That the

    concerned SSP forwarded a dossier of activities of the petitioner to the

    answering respondent i.e. the Detaining Authority, making out a case for

    his detention being a habitual bovine smuggler in the area. That his

    escalating involvement in bovine smuggling characterized by a blatant

    disregard for the law, has profoundly disrupted the peaceful equilibrium of

    the region. That the actions of the petitioner-detenu are deeply detrimental

    to the public order, have instilled fear and animosity among the local

    population, disrupting the harmonious rhythm of community life. That the

    subjective satisfaction drawn by the detaining authority before ordering the

    detention of the petitioner under the Preventive Detention Act cannot be

    questioned on the ground of insufficiency of the incriminating material

    against the detenu. That the observance of the procedural safeguards by the

    detaining authority leaves little scope for the detenu to assail the impugned

    order. That keeping in view the prejudicial activities of the detenu,

    preventive detention of the petitioner/detenu has been ordered so as to deter

    him from acting and/or indulging in prejudicial activities, as such writ

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    petition merits dismissal. That the impugned order of detention does not

    suffer from any malice or legal infirmity, as such challenge thrown to it is

    totally misdirected and misconceived, hence on this score the writ petition

    merits dismissal. That the petitioner has not approached this Hon’ble Court

    with clean hands and has instead tried to mislead this Hon’ble Court by

    sheer misrepresentation of facts, on this score also, the writ petition merits

    dismissal in limine. That the writ petition raises pure disputed question of

    facts, which cannot be adjudicated in a writ jurisdiction before this Hon’ble

    Court. On this ground alone, the writ petition is liable to be dismissed. That

    the deponent has observed all the constitutional and statuary safeguards

    enshrined in Article 22(5) of the Constitution of India as well as provisions

    of the Jammu and Kashmir Public Safety Act 1978, while directing the

    detention of the detenu, hence the writ petition deserves to be dismissed.

    That the liberty of the detenu is subservient to the welfare, safety and

    interest of society at large and the deponent has exercised the power in

    detaining him under PSA within the ambit of the law of the land by

    observing all the safeguards, as such, the writ petition merits dismissal.

    That the grounds of detention, were read over and explained to the detenu

    in the language the detenu understands. That despite the registration of

    three FIR(s) against the petitioner, he did not mend his behaviour and

    remained adamant in continuing the smuggling of bovine animals, leaving

    no alternative for the answering respondent but to invoke the provisions of

    the Public Safety Act in the larger public interest. That the answering

    respondent was aware that the petitioner/detenue is already involved in

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    substantive offences, but keeping in view his activities which were highly

    prejudicial to the social order, the detenue was booked under Public Safety

    Act, strictly as per the provisions of the same. That the petitioner is

    involved in case FIR No. 0061/2025 under Sections 233 BNS, of Police

    Station Surankote, which is under investigation when he stands already

    convicted in two earlier FIR Nos 0316/2022 and 0400/2022 both of P/S

    Surankote as himself admitted by the petitioner/detenu. That a copy of

    whole of the material relied upon by the answering respondent has been

    furnished to the petitioner-detenue and also read over and explained to him

    in the languages which he understood fully and in token of which his

    signature was obtained. That moreover the petitioner/detenue was informed

    that he can make a representation to the Government as well as the

    Detaining authority against his detention. That all the statutory

    requirements and constitutional guarantees have been fulfilled and

    complied with by the answering respondent. That the detention order in

    question has been passed by the answering respondent upon proper

    application of mind on the basis of the record brought before him.

    3. Heard the learned counsel for the parties in the matter.

    4. The learned counsel Ms. Damini Singh Chauhan, Advocate, while

    reiterating the stand already taken in the petition contended that the

    impugned detention order is the outcome of illegality and incorrectness for

    being devoid of application of mind and subjective satisfaction on the part

    of the ld. Detaining Authority. She contended that petitioner-detenue is

    alleged to be involved in case bearing FIR No. 0061/2025 registered at

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    Police Station, Surankote. That the said case FIR is pending investigation

    before the concerned police station, and it is not the case of the

    investigation officer that the petitioner was found and arrested on spot

    transporting the bovine animals.

    That admittedly in earlier case FIR Nos 0316/22 and 0400/22 of

    P/S Surankote, the petitioner/detenu at the trial of the same, voluntary

    made confession after plea bargaining to get the said cases disposed off

    against the payment of some amount of fine so as to save his time and

    prevent his mental agony. That the petitioner did not confess in the said

    cases on merits.

    That in the under investigation case, the petitioner is presumed to be

    innocent as per the cardinal principle of criminal jurisprudence of our

    country.

    It was further contended that so called Adverse report dated

    27.04.2025 of P/S Surankote and Istigasa under section 126, 129, 17 of

    BNSS dated 27.04.2025 and 08.05.2025 respectively being without any

    verification cannot base a detention order.

    The learned counsel very vehemently contended that the ld.

    Detaining Authority has misused its power vested in it under the Act by

    ordering the preventive detention of the petitioner-detenue on the allegation

    of his illegal activities which may amount to infraction of General Law and

    Order and not disorder in the society. He contended that none of the

    allegations/involvements amount to breach of public order as defined under

    Section 8(3) of the Act. He further submitted that it is well settled by

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    Hon’ble Supreme Court in a catena of judgments that there lies a marked

    distinction between the acts amounting to breach of law and order and the

    acts prejudicial to the social order.

    The learned counsel also contended that the copy of detention

    record in its entirety especially the grounds of detention, the Police Dossier

    and the documents regarding criminal cases were not furnished to

    petitioner/detenu which amounts to the violation of the mandatory

    provisions of Article 22(5) of the Constitution of India read with Section 13

    of the Act.

    The learned counsel submitted that in the facts and circumstances of

    the case, it is quite clear that the detention of the petitioner-detenue is

    apparently illegal, as not being justified under the provisions of Section 8

    of the Act. He contended that the impugned detention order is the outcome

    of non-application of mind on the part of ld. Detaining Authority.

    It was further contended that the learned detaining authority has

    wholly and solely relied upon the police dossier without making any

    independent inquiry or probe and the grounds of detention are the replica

    of police dosser.

    The leaned counsel for the petitioner in support of for arguments

    placed reliance on the authoritative judgments cited as, “Raziya Umar

    Bakshi vs. Union of India & Ors (AIR 1980 SC 1751); Chaju Ram vs.The

    State of Jammu & Kashmir, AIR 1971 SC 263; HCP No. 4/2024 titled

    Hamid Mohd vs. UT of J&K and ors decided on 06.08.2024; HCP No.

    72/2024 titled Muskan Ali vs. UT of J&K and ors decided on 29.08.24; Sai

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    fud din vs. UT of J&K HCP No. 111/2024: State of Maharashtra vs.

    Santosh Snober Acharya 2000(7) SCC 463″.

    The learned counsel for the petitioner sought the quashment of the

    impugned detention Order.

    5. Per contra, the ld. UT Counsel submitted that the petition is liable

    to be dismissed as none of the constitutional or any other statutory rights of

    the petitioner have been infringed by the respondents. He submitted that the

    detention order impugned in the petition has been passed on the due

    application of mind by the ld. Detaining Authority who was satisfied on the

    basis of the record of the dossier and the field inputs gathered by him that

    the activities of the petitioner are likely to endanger the public order. He

    contended that despite earlier registration of criminal cases against the

    petitioner and his being convicted in two cases, he did not mend his

    character but continued to indulge in aforesaid activities especially

    smuggling of bovine animals. He further contended that the object of the

    detention under the Act is preventive rather than punitive and is aimed at to

    debar an individual beforehand from indulging in activities prejudicial to

    the public order. The ld. State Counsel further contended that the

    petitioner/detenue who is of the age of about 49 years is a known habitual

    bovine smuggler in the area. That his criminal behaviour is becoming more

    serious and the general public has been registering its strong resentment for

    the actions of the petitioner-detenu regarding bovine smuggling.

    The learned UT counsel further contended that the copies of the

    detention record in entirety were furnished to the petitioner/detenue who

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    has acknowledged the receipt of the same at the time of his detention. That

    he was also informed of the grounds of detention in the language

    understood by him with further information that he has a right to make a

    representation to the detaining authority as well as to the Government.

    6. I have perused the instant petition, the reply affidavit and have also

    gone through the detention record produced by the ld. UT Counsel.

    7. Keeping in view the aforesaid perusal and the consideration of the

    rival arguments advanced on both the sides in the light of law on the

    subject, this Court is of the opinion that a ground is made out for interfering

    with the impugned detention order as the same suffers from patent

    illegality, misuse of power and non-application of mind on the part of the

    detaining authority.

    The main issue for redressal in the instant case is :-

    I. Whether the allegations against the petitioner culminating into
    registration of three Case FIR’s(two of which stand already disposed
    of on the confession of the petitioner) have the tendency to be
    prejudicial to the social order and if the answer is in the negative,
    whether the impugned detention order suffers from non-application of
    mind?

    8. Taking the issue for determination, the Court in the facts and

    circumstances of the case is of the opinion that although the criminal acts

    of petitioner which have culminated into the registration of three case FIR’s

    one of them presently under investigation and the other two already

    disposed of, no doubt, amount to infraction of law and order by falling

    within the definition of relevant offences under IPC/BNS, PCA Act yet the

    same have not the implication of disturbing the ‘social order’. The last

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    surviving case FIR is under investigation in the concerned police station.

    The said FIR No. 0061 of P/S Surankote Poonch pertains to the alleged

    occurrence of 05.05.2025. The allegations made therein, as mentioned

    hereinbefore, relate to an issue of law and order and not to public order.

    The allegations under the aforesaid case FIR, even if supposed to be true or

    proved for arguments sake, yet it cannot amount to activities prejudicial to

    social order.

    9. It is apt to reproduce the provisions of Section 8(3) of the Act
    which defines the social order for the purposes of Section 8(1)(a) of the
    Act.

    “8. Detention of certain persons
    (3) For the purposes of sub-section (1)
    [(a) omitted.

    (b) “acting in any manner prejudicial to the maintenance of
    public order” means –

    (i) promoting, propagating or attempting to create, feelings
    of enmity or hatred or disharmony on ground of religion, race,
    caste, community, or region;

    (ii) making preparations for using, or attempting to use, or
    using, or instigating, inciting, provoking or otherwise, abetting
    the use of force where such preparation, using, attempting,
    instigating, inciting, provoking or abetting, disturbs or is likely to
    disturb public order;

    (iii) attempting to commit, or committing, or instigating,
    inciting, provoking or otherwise abetting the commission of,
    mischief within the meaning of section 425 of the Ranbir Penal
    Code where the commission of such mischief disturbs, or is
    likely to disturb public order;

    (iv) attempting to commit, or committing, or instigating,
    inciting, provoking or otherwise abetting the commission of an
    offence punishable with death or imprisonment for life or
    imprisonment of a term extending to seven years or more, where
    the commission of such offence disturbs, or is likely to disturb
    public order;

    [(c) “smuggling” in relation to timber or liquor means possessing
    or carrying of illicit timber or liquor and includes any act which
    will render the timber or liquor liable to confiscation under the
    Jammu and Kashmir Forest Act, Samvat, 1987 or under the
    Jammu and Kashmir Excise Act, 1958, as the case may be;]
    [(d) “timber” means timber of Fir, Kail, Chir or Deodar tree
    whether in logs or cut up in pieces but does not include

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    firewood;]
    [(e) “Liquor” includes all alcoholic beverages including beer]”.

    10. The Hon’ble Apex Court has in a catena of judgments noted the

    difference between, “law and order” and “public order”.

    11. In Ram Manohar Lohia Vs. State of Bihar (1966) 1 SCR 709, it

    was held by the Hon’ble Apex Court through Hon’ble M. Hidayatullah. J.

    (as the Chief Justice then was) at para 54 as under: –

    “54. Public order if disturbed, must lead to public disorder.
    Every breach of the peace does not lead to public disorder. When
    two drunkards quarrel and fight there is disorder but not public
    disorder. They can be dealt with under the powers to maintain law
    and order but cannot be detained on the ground that they were
    disturbing public order. Suppose that the two fighters were of
    rival communities and one of them tried to raise communal
    passions. The problem is still one of law and order but it raises
    the apprehension of public disorder. Other examples can be
    imagined. The contravention of law always affects order but
    before it can be said to affect public order, it must affect the
    community or the public at large. A mere disturbance of law and
    order leading to disorder is thus not necessarily sufficient for
    action under the Defence of India Act but disturbances which
    subvert the public order are.”

    12. In Arun Ghosh Vs. State of West Bengal (1970) 1 SCC 98 again

    Hon’ble M. Hidayatullah, (CJ) observed that it is not the every case of a

    general disturbance to public tranquility which can be termed as public

    disorder and the test to be applied in such cases is whether the alleged act

    leads to the disturbance of the current of life of the community so as to

    amount to disturbance of the public order. That if the alleged act affects

    some individual or individuals leaving tranquility of the society

    undisturbed, the act cannot be termed as amounting to public disorder. In

    that case the petitioner/detenu was detained by an order of a district

    magistrate since he had been indulging in teasing, harassing and molesting

    HCP (96/2025) P a g e |11
    young girls and assaults on individuals of a locality. While holding that the

    conduct of the petitioner/detenu could be reprehensible, it was further held

    that it (read: the offending act) does not add up to the situation where it

    may be said that the community at large was being disturbed or in other

    words there was a breach of public order or likelihood of a breach of public

    order.

    The observations made by the Hon’ble Apex Court in the said case
    at para 3 are reproduced as under:-

    “3. Public order was said to embrace more of the community
    than law and order. Public order is the even tempo of the life of
    the community taking the country as a whole or even a specified
    locality. Disturbance of public order is to be distinguished from
    acts directed against individuals which do not disturb the society
    to the extent of causing a general disturbance of public
    tranquility. It is the degree of disturbance and its affect upon the
    life of the community in a locality which determines whether the
    disturbance amounts only to a breach of law and order. … It is
    always a question of degree of the harm and its affect upon the
    community….This question has to be faced in every case on
    facts. There is no formula by which one case can be distinguished
    from another.”

    13. In Kuso Sah Vs. The State of Bihar (1974) 1 SCC 195, the

    Hon’ble Apex Court through Hon’ble Y.V. Chandrachud, J. (as the Chief

    Justice then was) speaking for the Bench held at paras 4 & 6 as under:-

    “4. The two concepts have well defined contours, it being well
    established that stray and unorganized crimes of theft and assault
    are not matters of public order since they do not tend to affect the
    even flow of public life. Infractions of law are bound in some
    measure to lead to disorder but every infraction of law does not
    necessarily result in public disorder.”

    “6. The power to detain a person without the safeguard of a
    court trial is too drastic to permit a lenient construction and
    therefore Courts must be astute to ensure that the detaining
    authority does not transgress the limitations subject to which
    alone the power can be exercised.”

    HCP (96/2025) P a g e |12

    14. In Vijay Narain Singh Vs. State of Bihar, (1984) 3

    SCC 14, the Hon’ble Apex Court has held at para32 of the

    judgment through Hon’ble E.S.Venkataramiah, J. (as the

    Chief Justice then was) as under:-

    “32.It is well settled that the law of preventive detention is
    a hard law and therefore it should be strictly construed.
    Care should be taken that the liberty of a person is not
    jeopardized unless his case falls squarely within the four
    corners of the relevant law. The law of preventive detention
    should not be used merely to clip the wings of an Accused
    who is involved in a criminal prosecution. It is not intended
    for the purpose of keeping a man under detention when
    under ordinary criminal law it may not be possible to resist
    the issue of orders of bail, unless the material available is
    such as would satisfy the requirements of the legal
    provisions authorizing such detention. When a person is
    enlarged on bail by a competent criminal court, great
    caution should be exercised in scrutinizing the validity of
    an order of preventive detention which is based on the very
    same charge which is to be tried by the criminal court.”

    15. In A.K.Roy Vs. Union of India, (1982)1 SCC

    271 it was held at para 70 of the judgment as under:-

    70. *** We have the authority of the decisions in … for
    saying that the fundamental rights conferred by the different
    articles of Part III of the Constitution are not mutually
    exclusive and that therefore, a law of preventive detention
    which falls within Article 22 must also meet the
    requirements of Articles 14, 19 and 21.”

    16. This Court is also fortified in its opinion with the

    recent authoritative judgment of the Hon’ble Apex Court cited

    as Ameena Begum Vs. The State of Telagana & Ors.,

    Criminal Appeal arising out of SLP No. 8510 of 2023

    decided on 04.09.2023 in which it has been held at para-40 of

    the judgment as under:-

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    “40. On an overall consideration of the circumstances, it does
    appear to us that the existing legal framework for maintaining law
    and order is insufficient to address like offences under
    consideration, which the Commissioner anticipates could be
    repeated by the Detenu if not detained. We are also constrained to
    observe that preventive detention laws–an exceptional measure
    reserved for tackling emergent situations–ought not to have been
    invoked in this case as a tool for enforcement of “law and order”.

    Thus, for the reason that, the Commissioner despite being aware of
    the earlier judgment and order of the High Court dated 16th
    August, 2021 passed the Detention Order ostensibly to maintain
    “public order” without once more appreciating the difference
    between maintenance of “law and order” and maintenance of
    “public order”. The order of detention is, thus, indefensible.”

    17. In the above referred case, the allegation against the

    detenu was that he was “habitually committing the offences

    including outraging the modesty of women, cheating,

    extortion, obstructing the public servants from discharging

    their legitimate duties, robbery and criminal intimidation

    along with his associates in an organized manner in the

    limits of … and he is a “Goonda” as defined in clause (g) of

    Section 2” of the relevant Statute invoked by the

    Commissioner. The Commissioner, with a view to prevent the

    Detenu from acting in a manner prejudicial to maintenance of

    public order, recorded not only his satisfaction for invoking the

    provisions of the Act but also recorded a satisfaction that “the

    ordinary law under which he was booked is not sufficient to

    deal with the illegal activities of such an offender who has no

    regard for the society. Hence, unless he is detained under the

    detention laws, his unlawful activities cannot be curbed”.

    HCP (96/2025) P a g e |14

    18. The Hon’ble Apex Court in the landmark judgment

    cited as Sushanta Goswami, In Re ([1968} Supreme Court of

    India) addressed the critical issue of preventive detention under

    Article 32 of the Indian Constitution.

    The said case involved a collective petition by Sushanta Goswami and 46

    others challenging their detention under Section 3 (2) of the Prevention of

    Detention Act, 1950. The central question revolved around was whether the

    grounds for detention genuinely pertained to maintaining public order or were

    merely related to general law and order? The Hon’ble Supreme Court

    meticulously examined each petitioner’s grounds for detention, categorizing

    them based on their relevance to “public order.” The Court invalidated

    detention orders where the activities alleged did not directly threaten public

    order but were instead typical criminal offences such as theft, assault and

    property damage. Conversely, detention was upheld only where the activities

    posed a significant threat to the community’s overall peace and satiability.

    A pivotal aspect of the judgment was the Court’s insistence that detention

    under the guise of preventing actions prejudicial to public order must be

    substantiated by concrete evidence showing a direct impact on societal

    harmony. The Court emphasized the necessity of a clear and direct correlation

    between the detainee’s actions and the maintenance of public order.

    The Court referenced two significant cases to support its stance:

    Dwarka Das Bhatia Vs. State of Jammu & Kashmir (1956

    SCR 945): This case underscored the importance of relevance in

    HCP (96/2025) P a g e |15
    grounds for preventive detention, rejecting arbitrary detentions

    based on vague or unrelated reasons.

    Pursher Mukerjee vs. State of Wet Bengal.

    A mere recent decision at the time, this case further clarified

    the Judiciary’s view on maintaining the balance between state

    society and individual liberties, reinforcing stringent checks on

    detention order.

    The Court’s legal reasoning hinged on interpreting “public order” with

    precision. It delineated between general disturbances of law and order and

    actions that genuinely threaten societal piece. The judgment clarified that not

    every act disrupting law and order qualifies as being “prejudicial to public

    order.” For instance, petty thefts or assaults without broader societal

    implications do not meet the threshold for preventive detention under the Act.

    Furthermore, the court critiqued the authorities‟ tendency to conflate

    individual criminal acts with threats to public order, thereby undermining the

    very essence of preventive detention. By setting aside detention orders lacking

    direct relevance, the court reinforced the principle that such extreme measures

    must be reserved for genuine threats to societal harmony.”

    19. So it is reiterated that the material brought before the

    learned detaining authority by the District Superintendent of

    Police, Poonch was not of such a nature which could have been

    understood and apprehended as prejudicial to the “public

    order”. The alleged actions of the petitioner no doubt amount to

    infraction of laws for which the legal mechanism was all

    HCP (96/2025) P a g e |16
    sufficient to deal with. The invocation of the provisions of the

    Act to detain the petitioner rather than to deal with him under

    the general criminal law appears to be an unjustified exercise

    tent amounting to violation of the fundamental rights of the

    petitioner. Under these circumstances, the non-application of

    the mind is discernible in the matter.

    20. It is a settled legal position that a detention order suffering

    from non-application of mind of the detaining authority cannot

    be sustained under law.

    21. The learned detaining authority appears to have followed the police

    dossier without application of mind.

    This Court in cases titled “Naba Lone vs. District Magistrate, 1988 SLJ

    300″ and “Mohd. Farooq through Mohd. Yousuf vs. UT of J&K and

    others, WP (Crl) No. 17/2023″, decided on 03.09.2024 has laid down the law

    to the effect, “the grounds of detention supplied to the detenu is a copy of

    dossier, which was placed before the District Magistrate for his subjective

    satisfaction in order to detain the detenu. This shows total non-application of

    mind on the part of the Detaining Authority as he has dittoed the Police

    directions without applying his mind to the facts of the case.”

    The preventive detentions need to be passed with great care and caution

    keeping in mind that a citizens most valuable and inherent human right is

    being curtailed. The arrests in general and the preventive detentions in

    particular are an exception to the most cherished fundamental right

    guaranteed under Article 21 of the Constitution of India. The preventive

    HCP (96/2025) P a g e |17
    detentions are made on the basis of subjective satisfaction of the detaining

    authority in relation to an apprehended conduct of the detenu by

    considering his past activities without being backed by an immediate

    complaint as in the case of the registration of the FIR and, as such, is a

    valuable trust in the hands of the trustees. The provisions of Clauses (1)

    and (2) of Article 22 of our Constitution are not applicable in the case of

    preventive detentions. So, the provisions of Clause (5) of the Article 22 of

    our Constitution, with just exception as mentioned in Clause (6), together

    with the relevant provisions of the Section 8 of PSA requiring for

    application of mind, subjective satisfaction, inevitability of the detention

    order, proper and prompt communication of the grounds of detention and

    the information of liberty to make a representation against the detention

    order, are the imperative and inevitable conditions rather mandatory

    requirements for passing of a detention order.

    22. The allegations against the petitioner-detenu as per the pending

    investigation case arising out of the case FIR No. 0061 of 2025 of Police

    Station Surankote is the commission of the acts punishable under the sections

    223 BNS. There is no allegation against the petitioner-detenu regarding the

    commission of any act creating or attempting to create any feeling of enmity,

    hatred or disharmony on the ground of religion, caste and community.

    23. Since the alleged activities of the petitioner/detenue, present a law

    and order situation to be dealt with under the normal law, passing of the

    impugned detention order on the pretext of, ” public disorder” was not

    justified.

    HCP (96/2025) P a g e |18

    24. On the basis of the afore referred authoritative Judgments, this

    Court is of the opinion that the Detaining Authority has not applied its

    mind before passing the impugned detention order.

    25. It was incumbent upon the Detaining Authority to address to itself

    as to how the normal criminal law is inadequate to tackle the petitioner who

    is involved in the criminal case and stands bailed out. It is not the case of

    the respondents that the petitioner/detenue had violated the bail conditions

    nor is it their stand that they assailed the bail orders but did not succeed

    and, therefore, they bonafidely invoked the provisions of the Act to detain

    the petitioner with the view to prevent him from repeating his alleged

    illegal activities of smuggling bovine animals.

    26. The Hon’ble Supreme Court in case of “Rekha Vs. State of Tamil

    Nadu through Secretary to Government and Anr” reported in (2011) 5 SCC

    244 has laid emphasis on the fundamental right to life and personal liberty

    of a citizen of India guaranteed under Article 21 of our Constitution and

    has, accordingly, stressed for taking great care and caution while passing

    any preventive detention orders so that same are passed in case of genuine

    and inevitable need only without any misuse or abuse of the powers.

    27. It is the case of the petitioner/detenu that his representation dated

    17.06.2025 was turned a deaf ear by the respondents.

    It has been pleaded by the petitioner/detenu at para 4 ( C)- Grounds

    of challenge, of his petition that he has been falsely and frivolously

    accused of transporting bovine animals without any permission. That in

    HCP (96/2025) P a g e |19
    reality, he is an agriculturist/cultivator by profession who legitimately deals

    with farm animals as a means of livelihood and possesses a valid and

    lawful permit for the seasonal movement of animals for pasture within

    the District of Poonch which was effective until 30.11.2025. A copy of the

    said permit issued by the Tehsildar concerned with date of renewal upto

    30.11.2025 has been placed on the record of the petitioner as Annexure-X

    28. The preventive detentions need to be passed with great care and

    caution keeping in mind that a citizen’s most valuable and inherent human

    right is being curtailed. The arrests in general and the preventive detentions

    in particular are an exception to the most cherished fundamental right

    guaranteed under Article 21 of the Constitution of India. The preventive

    detentions are made on the basis of subjective satisfaction of the detaining

    authority in relation to an apprehended conduct of the detenue by

    considering his past activities without being backed by an immediate

    complaint as in the case of the registration of the FIR and, as such, is a

    valuable trust in the hands of the trustees. The provisions of Clauses (1)

    and (2) of Article 22 of our Constitution are not applicable in the case of

    preventive detentions. So, the provisions of Clause (5) of the Article 22 of

    our Constitution, with just exception as mentioned in Clause (6), requiring

    for application of mind, subjective satisfaction, inevitability of the

    detention order, proper and prompt communication of the grounds of

    detention and the information of liberty to make a representation against

    the detention order, are the imperative and detention order.

    HCP (96/2025) P a g e |20

    29. There is no whisper in the impugned detention order or in the

    grounds of detention regarding any independent probe by the learned

    detaining Authority, which appears to have acted upon the police dossier.

    30. It is apparent from the perusal of the detention record that

    admittedly as contended by the petitioner/detenu in his petition, his

    representation dated 17.06.2025 has been turned a deaf ear. The order

    dated 24.06.2025 of the learned Advisory Board passed on the reference of

    the Govt-Home Department reveals that no representation appears to have

    been filed by the petitioner as no such document is placed on the records,

    when the detention record to the contrary has a communication dated

    24.06.2025 of the Govt Home Department addressed to the Advisory Board

    regarding forwarding of the representation of the petitioner for

    consideration.

    31. For the foregoing discussion, the impugned order appears to be the

    outcome of the non-application of mind and misuse of powers.

    32. The petitioner/detenue has already suffered a detention of about

    Nine (9) months pursuant to the impugned detention order.

    33. Accordingly, the petition is allowed and the impugned detention

    order bearing No. DMP/PSA/05 of 2025 dated: 11.06.2025 passed by the

    respondent No. 2 i.e. District Magistrate, Poonch, is quashed with the

    direction to the respondents to release the petitioner/detenue namely Mohd

    Ayaz s/o Mohd Shafi r/o Bhounikhet, (Dhooni Khet) PO Sialan, District

    Poonch J&K 185121, forthwith from his preventive detention in the instant

    case.

    HCP (96/2025) P a g e |21

    34. The detention record is ordered to be returned back to the Office of

    the learned Dy AG, Jammu against proper receipt.

    35. Disposed of.

    (MOHD YOUSUF WANI)
    JUDGE
    SRINAGAR
    12 .03.2026
    Ayaz

    Whether the judgment is speaking? Yes
    Whether approved for reporting? Yes

    HCP (96/2025) P a g e |22



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