Jammu & Kashmir High Court
Shamash Din vs Ut Of J&K on 28 April, 2026
1
Supple s-
152
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on: 28.04.2026
HCP No. 134/2025 CM No.5930/25
Shamash Din, age 78 years ...Petitioner(s)
s/o Lt. Sh. Mukhtiar Ahmad
r/o Lohai, Tehsil Lohai Malhar, District Kathua
A/P Lodged at District Jail, Udhampur.
Through: Mr. Ajay Gandotra, Sr Adv with
Mr. Gulbaz Sheikh, adv.
vs.
1.UT of J&K, through Principal Secretary to Govt.
(Home) Department Civil Sectt. Srinagar,
2.District Magistrate Kathua,
College Road, Shiv Nagar, Kathua.
...Respondents.
3. Senior Superintendent of Police, Kathua,
College Road, Urli-wand, Kathua.
4. Superintendent District Jail, Udhampur.
Through: Mr. Suneel Malhotra, GA.
CORAM:
Hon'ble Mr. Justice Mohd. Yousuf Wani, Judge.
JUDGMENT
1) Impugned in the instant petition, filed on behalf of the
petitioner/detenu, under the provisions of Article 226 of the
Constitution of India, is the order of detention bearing No.
PSA/161 dated 24.05.2025, issued by the respondent No. 2 i.e.
2
District Magistrate, Kathua (hereinafter referred to as the
Detaining Authority for short), in exercise of its powers vested
under Section 8 (1) (a) (i) of the Jammu and Kashmir Public
Safety Act, 1978 (hereinafter referred to as the PSA for sort)
whereby the petitioner/detenu was ordered to be detained and
lodged in the District Jail Udhampur, with a view to prevent him
from acting in any manner prejudicial to the security of the State.
2) On behalf of the petitioner/detenu, issuance of writs in the nature
of Certiorari and Mandamus, have been sought for quashment of
the impugned detention order and consequent release of the
petitioner/detenu.
3) The impugned detention order has been challenged through the
medium of the instant petition on the grounds, inter alia; that the
same has been prima facie passed by the detaining authority
without the application of mind, to all the relevant circumstances
lacking requisite subjective satisfaction, as would be clear from
the perusal of the contents of Detention Order compared with the
Dossier which is based on materials extraneous to the scope of
the PSA. That the grounds basing the order impugned
are the exact verbatim of the Police Dossier except few
sentences here and there. That it clearly shown that the impugned
order has been passed in huff and haste manner, without
independent and impartial application of mind by the detaining
authority which is a strict requirement while determining the
legality of a preventive detention order as mandated by Hon’ble
Supreme Court of India in case reported as Amina Begum v.
3
Stateof Telangana – 2023 Livelaw (SC) 743 (Para 25). That out
of the two case FIR Nos basing the impugned detention order, it
is not mentioned or given consideration to the fact that the
petitioner-detenue has been discharged in F.I.R No.27/2023,by
the court of Ld. Principal Sessions Judge, Kathua vide Order date
d22.08.2024. That the detaining authority undisputedly has not
applied its mind to ascertain the facts and assume subjective
satisfaction before issuing the impugned detention order. That
the mention of a case FIR in the grounds of detention, in which
the petitioner had already been discharged, amounts to
misrepresentation & suppression of material facts, and shows
malafides on part of respondent no. 2. That sponsoring authority
did not place the important fact of Discharge of petitioner which
could have made a different effect on the subjective satisfaction
allegedly assumed by the detaining authority. That the detention
order cannot sustain and needs to be quashed. That in F.I.R.
No.09/2021 u/s 457/323/1456/34 RPC, the petitioner has been
enlarged on bail by JMIC Billawar. That in FIR No. 27/2023 u/s
341/457/354 IPC, the petitioner has been discharged. That the
offences under case FIR o. 09 of 2021 by no stretch of legal
interpretation or judicial precedent, fall within the ambit of
“Security of the State” which forms the sole basis for the
impugned detention order. That These sections pertain primarily
to offences involving property trespass, simple assault, and minor
bodily offences, which may at best fall within the domain of “law
and order”, and not Public Order. That it is a settled legal position
that for invoking preventive detention on the ground of “Security
4
of the State”, the activities of the detenu must be of such a grave
and serious nature, so as to pose a real threat to the sovereignty,
integrity, or to safety of the State. That the invocation of such a
serious ground in the absence of any overt act or material to
indicate threat to the State machinery is nothing but a colourable
exercise of power. That reliance on the FIRs, which bear no
nexus with the alleged ground, is legally untenable, and the
Detention Order is liable to be quashed on this ground alone. That
the constitutional and legal scheme under preventive detention
law draws a clear and categorical distinction between “Law and
Order”, “Public Order”, and “security of the State” each
representing escalating levels of threat and invoking different
thresholds of preventive action. That the Hon’ble Supreme Court
in Dr. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740,
has clearly laid down that the acts that disturb ‘law and order’
are many times of a much lesser gravity than those which affect
‘public order’, and in turn, those that affect ‘public order are of a
lesser magnitude than those that threaten ‘security of the State’.
Thatthese terms are not to be used loosely or interchangeably.
That Six DDR extracts reproduced in the Detention Order, which
are dated 07.04.2024, 31.07.2024, 01.08.2024, 12.08.2024,
22.09.2024 and 12.01.2025 respectively contain very vague and
ill-informed contents devoid of particulars and genuineness. That
all the extracts though variously dated have the same language
and not a word here and there and are verbatim of each other.
That these Daily Diary Entries are self serving documents
prepared by police in quick perpetual succession to increase the
5
volume of the Dossier. That none of these reports have resulted
in any fresh F.I.R. That these reports are non-reliable, vague,
filled with non-existent facts and cannot form the basis for
curtailment of personal liberty of petitioner. That the copy of
detention record as provided to the petitioner is illegible with
several pages being half-cut and entirely blackened and,
unreadable. That this gross defect in the communication of the
grounds of detention has seriously prejudiced the fundamental
right of the petitioner to make an effective representation against
the said order as guaranteed under Article 22(5) of the
Constitution of India. That it is a settled position of law,
reiterated in plethora of Judgments that proper and complete
communication of the grounds of detention is sine qua non for the
continued validity of a preventive detention order. That in the
absence of legible and complete copy, the petitioner is deprived
of the opportunity to challenge the detention order effectively.
That the documents duly supplied to the wife of the petitioner did
not contain the total number of pages/leaves, so provided. That
further contents of the incomplete documents were not read over
and explained to the detenu in his local language understandable
by him. That the timeline, in which, the process of sponsoring,
approving, ordering. and executing of the Detention Order was
carried out, is wholly out of live and proximate link of the
Detention Order with alleged activities of petitioner prejudicial to
the Security of State. That the last F.I.R. registered against the
accused/petitioner was in 2023 and the last DDR is dated
12.01.2025. The Detention Order was passed after 2 years of last
6
F.I.R. The genuineness of the DDR’s is disputed, as they cannot
be a ground for detention, being copy paste version of each other.
That the execution of the order was carried out on 30.06.2025, i.e.
almost a month after the Detention Order was passed. That no
reason for the above-mentioned delay is given in any document
and moreover, the information letter of the detenu appended with
the Order is dated 24.05.2025, but it was however provided to the
petitioner on 01.07.2025.That, there is no live and proximate link
of the alleged activities of the petitioner with the passing of
Detention Order and the timelines are in contravention of
essential requirements under detention laws, thereby rendering
the order unsustainable in the eyes of law. That the sponsoring
authority has annexed with the record a purported statement
attributed to Sh. Kishore Kumar, DDC, Badnota, Lohai Malhar,
District Kathua, Chowkidar, Panchayat Halqa, Lohai Malhar and
Sh. Des Raj, Chowkidar, Panchayat Halqa, Lohai Malhar, bearing
their official stamps and signatures, however, the said paras
categorically disowned the attributed statement/documents. That
this amounts to the malafides on part of respondent no.3,
rendering the Detention Order as punitive rather preventive. That
the respondent no. 3 has dropped to a places where statements of
the local representatives are taken forcibly to frame an innocent
social worker and project him as a hardcore facilitator of anti-
national activities. That the detenu has been referred to as a
Surrendered Militant and OGW, when that is not the case, as he
was government employee having completed his service after
superannuation. That the action of the authorities involved in
7
detaining the petitioner is not only patently arbitrary in nature but
also an abuse of power and leads to violation of the fundamental
rights of petitioner under Articles 14, 21, and 22 of the
Constitution of India. That the learned Detaining Authority was
under an obligation to furnish translated copies of the FIR and the
statements of witnesses to the petitioner/detenu, so as to enable
him to understand the same in his local language. That the
petitioner/detenu is innocent and has never indulged in any
activity prejudicial to the security of the State and the allegations
leveled against him in the memo of grounds of detention are
totally false. That the petitioner/detenu has never been an Over
Ground Worker (OGW) of any banned outfit, nor has he ever
carried out any anti-national activity. That the petitioner/detenu
has never provided any logistic support to any terrorists or any of
their associates. That the grounds relied upon by the learned
Detaining Authority are not only obsolete, stale, ambiguous,
indefinite and untrue, but also lack in essential details, thus
having no nexus with the purpose sought to be achieved under the
provisions of PSA. That the petitioner/detenu is the lone bread
earner of his family and on account of his continued detention,
his family members have been badly suffering for want of
maintenance. That the learned Detaining Authority while passing
the order impugned, has violated all the procedural safeguards
guaranteed under Article 22 (5) of the Constitution of India and
the petitioner/detenu has got no other alternate or efficacious
remedy available to him, except to file the instant petition before
this Court.
8
4) The petition has been resisted by the respondents through the
memo of objections on the grounds that same is not maintainable
in view of the fact that detention of the petitioner stands ordered
in terms of a valid and legal order issued by the learned
competent authority in exercise of his powers vested in it u/s 8 of
PSA.
That none of the legal, fundamental & statutory rights of the
petitioner have been violated by the answering respondent.
That the detention of the petitioner/detenu was ordered after due
consideration of the dossier received from Senior Superintendent
of Police (SSP) Kathua vide No. Pros/27898- 901/DPOK dated
16-05-2025.
That the petitioner was found continuously and repeatedly
involved in anti national activities, thereby posing a persistent
threat to security of State.
That the Preventive detention of the petitioner, was necessary to
maintain the security of the state.
That the material relied upon, including FIRs, showed a
continuous pattern of conduct threatening law and order as such
the writ petition is liable to be dismissed.
That the petitioner/detenu is a known facilitator of terrorist
activities and has consistently remained involved in formulating
strategies aimed at disturbing the public peace and tranquility in
the area.
That a grave threat to the security and sovereignty of the State,
necessitated the taking of preventive measures.
That having regard to the gravity of the situation and after due
and careful application of mind, the petitioner/detenu was
detained under the provisions of the PSA.
9
That the grounds of detention, detention warrant, and all other
relevant documents- comprising a total of 65 leaves were duly
read over in English and explained to the detenu in Dogri/Urdu
language, which he fully understood.
That the petitioner/detenu was informed through this office
communication No. DMK/JC/2025-26/480-85 dated 24.05.2025
regarding his detention under the PSA.
That he was also provided a full and fair opportunity to make a
representation against the said order to the Government within
the stipulated time period.
That the Home Department vide communication No. Home/PB-
V/333/2025/(7651581) dated 06.08.2025 intimated the
Respondents about the representation received on behalf of the
petitioner/detenu, which was found to be without merit.
That the copy of the communication No. Home/PB-
V/333/2025/(7651581) dated 06.08.2025 was also endorsed to
Superintendent, District Jail Udhampur with the directions to
inform the petitioner/detenu regarding the disposal of his
representation.
That the Superintendent, District Jail Udhampur vide his office
letter No. DJU/MS/25/8437-40 dated 10.08.2025 has informed
the petitioner/detenue as also to Sh. Johan Mohd (son of detenu)
regarding disposal of representation filed by him before the
Respondents.
That as per the dossier received from the Senior Superintendent
of Police, Kathua, vide No. Pros/27898- 901/DPOK dated
16.05.2025, and considering the continuous and repeated
involvement of the petitioner/ detenu in Anti- National activities,
his detention was ordered.
That the petitioner/detenu was detained under the provisions of
the PSA, in order to maintain public peace and tranquility in the
region.
10
That the petitioner is known to have a criminal mindset and is
reportedly involved in several anti-national activities.
That the petitioner’s persistent unlawful conduct and criminal
inclination, had become a challenge for prevention of the same,
from being escalated.
That the details of FIR's/cases registered against petitioner/detenu are as follows:- , a) FIR No. 09/2021 U/S 457/323/456/34 RPC P/S Malhar b) FIR No. 27/2023 U/S 341/376/354-D IPC P/S Malhar That apart from the FIRs, the information regarding the involvement of subject in Anti-National activities preventive
measures were also taken against him which are as under:-
a) Preventive measures DDR u/s 107 Cr.P.C of P/S Malhar dated 07.04.2024
b) Preventive measures DDR u/s 126 BNSS of P/S Malhar dated 31.07.2024
c) Preventive measures DDR u/s 126 BNSS of P/S Malhar dated 01.08.2024
d) Preventive measures DDR u/s 126 BNSS of P/S Malhar dated 12.08.2024
e) Preventive measures DDR u/s 126 BNSS of P/S Malhar dated 22.09.2024
f) Preventive measures DDR u/s 126 BNSS of P/S Malhar dated 12.01.2025.
That there exists a clear and consistent pattern of anti-national
activities carried out by the subject.
That there is little or no likelihood of the subject being dissuaded
from engaging in such illegal, anti- social, and anti-national
behaviour.
That the subject has been actively involved in terrorist-related
activities and has been responsible for creating serious law and
order problems.
That the subject, while repeatedly evading the process of law, has now started functioning as an Over Ground Worker (OGW) for a terrorist organization. That the petitioner/detenu is a known facilitator of terrorist
activities and has consistently remained involved in formulating
11
strategies aimed at disturbing the public peace and tranquility in
District Kathua.
That the activities of the petitioner pose a grave threat to the
security and sovereignty of the State, which necessitated
preventive measures. It is further submitted that the Hon’ble
Supreme Court in case State of T.N. v. Nabila, (2015) 12 SCC
127 has held that:
“…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”.
That the action taken against the petitioner/detenu in the past
under substantive laws has not proved fruitful in deterring him
from indulging in Anti National activities.
That the law laid down by the Hon’ble Supreme Court in
Haradhan Saha v. State of W.B. (1975) 3 SCC 198 at Paragraphs
32 and 33 of the judgment being relevant herein is reproduced
hereunder:
“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
12preventive 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.”
That the Hon’ble Supreme Court in case Sunil Fulchand Shah v.
Union of India, (2000) 3 SCC 409, held as under:
“…Personal liberty is one of the most cherished
freedoms, perhaps more important than the other
freedoms guaranteed under the Constitution. It was
for this reason that the Founding Fathers enacted the
safeguards in Article 22 in the Constitution so as to
limit the power of the State to detain a person
without trial, which may otherwise pass the test of
Article 21, by humanizing the harsh authority
over individual liberty.
However, where individual liberty comes into
conflict with an interest of the security of the State or
public order, then the liberty of the individual must
give way to the larger interest of the nation.”
That the Hon’ble Supreme Court has also held that there is no
parallel between prosecution in a Court of law and a detention
order under the Public Safety Act. One is a punitive action and the
other is a preventive act. In one, case a person is punished to
prove his guilt and the standard is proof beyond reasonable doubt
whereas in preventive detention a man is prevented from doing
something which it is necessary for reasons mentioned in the Act.
The relevant part of the judgment is reproduced as under:-
“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 from
doing it. The, basis of detention is the satisfaction of
the executive of a reasonable probability of the
likelihood of the detenu acting in a manner similar to
his past acts and preventing him by detention from
doing the same. A criminal conviction on the other
hand is for an act already done which can only be
possible by a trial and legal evidence. There is no
13parallel between prosecution in a Court of law and a
detention order under the Act. One is a punitive
action and the other is a preventive act. In one, case a
person is punished to prove his guilt and the standard
is proof beyond reasonable doubt whereas in
preventive detention a man is prevented from doing
something which it is necessary for reasons
mentioned in section 3 of the Act to prevent.”
5) I have heard the learned counsel for the petitioner Mr.Ajay
Gandotra Sr. Advocate and Mr. Suneel Malhotra, learned
GA., for the respondents.
6) Learned counsel for the petitioner while reiterating his stand
taken by him as per the averments of the petition, contended that
the petitioner/detenu is innocent and has never been involved in
the alleged activities. That the petitioner/detenu has never been an
OGW of any banned outfit and he has also never provided any
support or assistance to any terrorist(s) as alleged. He contended
that the petitioner/detenu was taken from his home and involved
in case FIR No. 09/2021 by the Police Station, Malhar. That the
learned Trial Court granted him bail in the said case FIR,
whereafter he was instead of releasing detained under the garb of
the impugned detention order dated 24.05.2025.That the same
case FIR bearing No. 09/2021registered with Police Station,
Malhar, in which the petitioner/detenu was released on bail by the
competent Trial Court, has been made the main basis for passing
of the impugned detention order. He further contended that the
case FIR No. 09/2021 was investigated for the commission of the
alleged offences punishable under Section 457/323/456/34 RPC
and the final police report/charge sheet was also produced by the
14
police concerned before the competent Trial Court, in which the
petitioner/detenu was enlarged on bail. The learned counsel for
the petitioner further contended that since offence under Sections
457/323/456/34 RPC Act fall under “law and order regime”
and not “Security of State”, as such, it is understood that the
competent Trial Court granted the concession of bail to the
petitioner/detenu for the said offence upon his satisfaction to the
effect that accusation against him is not prima facie true.
The learned counsel further contended that there appears to
be no live link or proximity between the alleged act of the
petitioner/detenu leading to the registration of last case last FIR
27/2023 with the PS Malhar, as he stands already discharged in
the same. The learned counsel also contended that the charge
against the petitioner/detenu as per case FIR No. 09/2021 of PS
Malhar, is totally baseless and fabricated, as no objectionable
material has been recovered from him which fact is clear from
the evidence recorded at the trial of the said case FIR, pending
disposal before the learned Trial Court.
The learned counsel for the petitioner/detenu also
contended that the procedural guarantees under Article 22 (5)
and Section 13 of the PSA were observed in breach as the copies
of FIR and the statements of witnesses recorded during the
investigation of the case as well as the grounds of detention,
were not furnished to the petitioner/detenuin time, thus disabling
him to make an earliest representation against his detention. He
also argued that while the criminal case was pending trial against
15the petitioner/detenu, there was no justification for his preventive
detention in parallel and the respondents even if aggrieved, could
have assailed the bail order, which has not been done.
The learned counsel in support is his arguments, placed
reliance on the judgments of this Court passed in “Bashir Ahmad
Dar vs Union Territory of J&K and Anr, WP(Crl) No.
06/2021 decided on 15th July, 2022; Imtiyaz Ahmad Chikla vs
Union Territory of J&K and Anr, WP(Crl) No. 150/2021,
decided on 18th July, 2022; and Sajjid Zahoor Khan vs Union
Territory of J&K and Anr, WP(Crl) No. 35/2023, decided on
25th August, 2023.”
The learned counsel for the petitioner prayed for setting
aside of the impugned order of detention and release of the
petitioner/detenu.
7) The learned counsel representing for the respondents Mr.
Suneel Malhotra ld GA, also reiterated his stand taken in the reply
affidavit. He contended that the detention order impugned in the
petition does not suffer from any illegality or perversity, as the
same was passed by the learned Detaining Authority in exercise
of its powers vested in it, in terms of the provisions of Section 8
(1) (a) (i) of the PSA, upon his due application of mind, having
regard to the conduct of the petitioner/detenu and his
apprehension of repeating the commission of unlawful activities.
He submitted that the object of the preventive detention is to
prevent an individual from committing any illegal activity
prejudicial to the security of the State or the maintenance of the
16
social order and not to punish him. He further contended that the
preventive detention is not the parallel proceeding of a trial, which
is held by a court and is concluded on the basis of the evidence.
He further contended that the petitioner/detenu was working as an
upper ground worker of banned outfits, who was carrying out
anti-national activities including transportation of terrorists and
providing shelter to them. It was also contended by the learned
GA that the learned Advisory Board constituted under Section 14
of the PSA on reference, examined the case against the
petitioner/detenu and made its opinion in favour of the detention
order. That the preventive detention of the petitioner/detenu was
felt to be imperative, with a view to prevent him from acting in
any manner prejudicial to the security of the State.
He further contended that the procedural formalities as
mandated under Article 22(5) of the PSA were complied with by
furnishing to the petitioner/detenu copies of detention order and
the grounds of detention immediately upon his arrest and the
grounds of detention were read over and explained to him in his
local language. He contended that even the grant of bail in
criminal offence cannot debar the Detaining Authority to order the
preventive detention of an individual, which appears to be
imperative and unavoidable. He also contended that the
preventive detention is aimed at to protect the society and that
there is immediate and direct link between the petitioner/detenu’s
past conduct and likelihood of his repetition of the same.
17
The learned UT counsel while placing reliance on the
authoritative judgments of the Hon’ble Apex Court cited as
“Hardhan Saha vs State of West Bengal (1975) 3 SCC 198;
State of Bombay v. Atma Ram Shridhar Vaidya, AIR 1951 SC
157; .”submitted that it has been observed in the said cases that,
there is no parallel between the prosecution in a court of law and
a detention order under the PSA. That one is punitive action and
the other is preventive act. That in one case, a person is punished
to prove his guilt and the standard is proof beyond reasonable
doubt, whereas in preventive detention, a man is prevented from
doing something, which it is necessary for the reasons mentioned
in the Act, to prevent.
On the strength of the reliance placed on the above referred
judgments, the learned UT counsel contended that it has been held
in the cited judgments that preventive detention is devised to
afford protection to the society. That Court must be conscious that
the satisfaction of the Detaining Authority is “subjective” in
nature and the court cannot substitute its opinion for the
subjective satisfaction of the Detaining Authority and interfere
with the order of detention. That it was also held in one of the
relied upon cases that, “however, where an individual’s liberty
comes in conflict with the interests of the Security of the State
or maintenance of public order, then the liberty of the
individual must give way to the larger interest of the
nation.”That there is a direct and immediate link between the
petitioner/detenu’s past conduct and his apprehended future
18
activities. That the collective assessment of the grounds of
detention has led the learned Detaining Authority to reach
subjective satisfaction for placing the petitioner/detenu under the
preventive detention. That the petitioner/detenu indulged in
various anti-national activities. which facilitated the strengthening
of the network of OGW workers on ground. That the activities in
which the petitioner/detenu has indulged, are highly objectionable
and prejudicial, which are adversely affecting the peace and
tranquility in the society. That the petitioner/detenu was found in
close touch with the terrorists of different organizations for the
purpose of carrying out subversive activities. That the
petitioner/detenu was working as OGW of banned outfit and, as
such, his preventive detention was imperative. That he is involved
in the case FIR No. 09/2021 under Section 457/323/456/34 RPC
of Police Station Malhar. That the details of the illegal activities
of the petitioner/detenu are delineated in the grounds of detention
as also in the dossier. That the learned Advisory Board constituted
under Section 14 of the PSA upon examination of the case of the
petitioner/detenu, accorded approval as per its opinion on
reference.
8) I have perused the instant petition, reply affidavit filed by
the respondents and the copies of documents enclosed with the
same. I have also gone through the copy of the detention record
produced by the learned counsel for the respondents. It appears
from the perusal of the record that admittedly the registration of
case FIR No. 09/2021 under Sections 457,323, 456, 34 RPC in P/S
19
Malhar is the main basis for issuance of the impugned detention
order by the respondents, in addition to the other
allegations/inputs against the petitioner/detenu regarding his
involvement in the commission of unlawful activities.
9) It was contended by the learned counsel for the
petitioner/detenu that the petitioner/detenu was bailed out in the
case FIR No. 09/2021 of PS Malhar U/Ss 457/323/456/34 RPC in
P/S Malhar, only after the competent Trial Court was convinced in
the light of the evidence that the allegations/charge against the
petitioner/detenu does not seem to be prima facie true. The
learned counsel for the petitioner contended that the
petitioner/detenu stands already discharged in case FIR N.
27/2023 of Police Station Malhar by the trial court of Ld Principal
District & Sessions Judge, Kathua vide his order dated 22.08.2024
passed on the said criminal case. The petitioner/detenu has placed
on record a copy of the said order dated 22.08.2024 as annexure-
III to the petition.
10) It is thus, clear that petitioner/detenu stood already
discharged in the aforesaid case FIR 27/2023 at Police Station
Malhar at the time of passing of the detention, when the same case
FIR constitutes a main basis of the passing of the detention order.
11) So far as case FIR No. 09/2021 of Police Station Malhar is
concerned, the offences alleged therein fall within the ambit of
ordinary criminal law infractions. There is no offence under the
said FIR which constitutes an offence against the security of the
State.
20
12) The DD Reports dated 07.04.25, 31.07.25, 01.08.24,
12.08.24, 22.08.24 and 12.01.25 cannot justify the preventive
detention against the detenu. The contents of the said DD Reports
pertain to some allegations without being backed by formal
complaints or proceeded by formal registration of case FIRs
cannot justify the preventive detention of the detenu. It is well
settled that the preventive detention cannot be based on the DD
Reports being unverified. The perusal of the said DDRs also
reveals that as admittedly contended by the learned counsel for
the petitioner, they are the true copies of each other having the
same phraseology.
13) In the opinion of this Court, there appears to be no
proximate or live link between the allegations leading to the
registration of case FIR No. 09/2021 of PS Malhar and need for
issuance of the impugned detention order, maintaining a gap of
more than four years. The impugned detention order on this
account, appears to be suffering from illegality. This Court feels
fortified in its opinion by the authoritative judgment of the
Hon’ble Supreme Court reported in “Rajinder Arora Vs. Union
of India and others” AIR 2006 (4) SCC 796, decided on
10.03.2006″. The relevant paras of the judgment are reproduced
as hereunder:-
“The conspectus of the above decisions can be
summarized thus: The question whether the prejudicial
activities of a person necessitating to pass an order of
detention is proximate to the time when the order is
made or the live link between the prejudicial activities
and the purpose of detention is snapped depends on the
facts and circumstances of each case. No hard and fast
21rule can be precisely formulated that would be
applicable under all circumstances and no exhaustive
guidelines can be laid down in that behalf. It follows
that the test of proximity is not a rigid or mechanical
test by merely counting number of months between the
offending acts and the order of detention. However,
when there is undue and long delay between the
prejudicial activities and the passing of detention order,
the court has to scrutinize whether the detaining
authority has satisfactorily examined such a delay and
afforded a tenable and reasonable explanation as to
why such a delay has occasioned, when called upon to
answer and further the court has to investigate whether
the causal connection has been broken in the
circumstances of each case.
Similarly when there is unsatisfactory and unexplained
delay between the date of order of detention and the
date of securing the arrest of the detenu, such a delay
would throw considerable doubt on the genuineness of
the subjective satisfaction of the detaining authority
leading to a legitimate inference that the detaining
authority was not really and genuinely satisfied as
regards the necessity for detaining the detenu with a
view to preventing him from acting in a prejudicial
manner.”
14) The learned Detaining Authority has not addressed the
aspect as to how normal criminal law is inadequate to deal with
the petitioner/detenu. The petitioner/detenu was admitted to bail
by the competent Trial Court with strict conditions appended to
the bail order. Said conditions seem to be sufficient to regulate
and keep a surveillance on the activities of the petitioner/detenu. It
is not the case of the learned Detaining Authority that the bail
order was assailed before any competent forum and prayer of the
UT for cancellation of the bail was not allowed. It is also not the
case of the respondents that the petitioner/detenu immediately
after his release in the case FIR No. 09/2021 of PS Malhar
pursuant to the bail order granted by the Judicial Magistrate
Billawar, indulged in any illegal activity, with any specific
22
allegation. On this account also, the issuance of the impugned
detention order was not unavoidable.
15) In “Rekha Vs. State ofTamil Nadu, (2011) 5 SCC 244”,
the observations made by the Hon’ble Apex Court at Paras 21, 29 &
30 deserve a needful mention
“21. It is all very well to say that preventive detention
is preventive not punitive. The truth of the matter,
though, is that in substance a detention order of one
year (or any other period) is a punishment of one year’s
imprisonment. What difference is it to the detenu
whether his imprisonment is called preventive or
punitive?
***
29. Preventive detention is, by nature, repugnant to
democratic ideas and an anathema to the Rule of law.
No such law exists in the USA and in England (except
during war time). Since, however, Article 22(3)(b) of
the Constitution of India permits preventive detention,
we cannot hold it illegal but we must confine the power
of preventive detention within very narrow limits,
otherwise we will be taking away the great right to
liberty guaranteed by Article 21 of the Constitution of
India which was won after long, arduous and historic
struggles. It follows, therefore, that if the ordinary law
of the land (the Penal Code and other penal statutes)
can deal with a situation, recourse to a preventive
detention law will be illegal.”
“30. Whenever an order under a preventive detention
law is challenged one of the questions the court must
ask in deciding its legality is: was the ordinary law of
the land sufficient to deal with the situation? If the
answer is in the affirmative, the detention order will be
illegal. In the present case, the charge against the
detenu was of selling expired drugs after changing their
labels. Surely the relevant provisions in the Penal Code
and the Drugs and Cosmetics Act were sufficient to
deal with this situation. Hence, in our opinion, for this
reason also the detention order in question was illegal.”
16) In “Vijay Narain Singh Vs. State of Bihar, (1984) 3 SCC
14″, the Hon’ble Apex Court has held at Para 32 of the judgment
23
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.”
17) 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.”
18) This Court is also in full agreement with the authoritative
law relied upon by counsel for the respondents Mr. Suneel to the effect
that the object of the preventive detention of an individual is preventive
in nature and not punitive. Admittedly, the preventive detention cannot
be supposed to be a parallel proceeding. The object of the preventive
detention is to deter a person in advance from indulging in any anti-
national or anti-social activities prejudicial to the security of the State
and/or interests of the society. Admittedly, where an individual liberty
24
and the right of the entire society to a peaceful life are pitted together,
the individual liberty has to give way to the social interest or the interest
of the State, as the case may be. However, as hereinbefore mentioned,
there does not appear to be a live link between the alleged acts, resulting
in the registration of case FIR No. 09/2021 with Police Station Malhar
and the need for issuance of the impugned detention, order with a gap of
more than four years. It is also not the case of the respondents that the
petitioner/detenu upon his release pursuant to the bail order, repeated the
alleged unlawful activities.
19) The DD Reports finding the place in the grounds of
detention as a basis for the impugned detention order cannot be relied
upon as being unverified and without being proceeded by the formal
registration of case FIRs.
20) It is very needful to mention that the offences in the case
FIR 09/2021 of Police Station Malhar do not cover any allegations of
activities prejudicial to the security of the State.
21) The petitioner had already been discharged in the another
case FIR before passing of the impugned detention order. The mention
of the same in the grounds of the detention as a strong basis reflects the
non-application of the mind on the part of the learned detaining
authority.
22) The petitioner/detenu is reported to be a man of advanced
age suffering from various age related ailments.
23) The preventive detention needs to be passed with great care
and caution keeping in mind that a citizens most valuable and inherent
25
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 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.
24) In “Vijay Narain Singh Vs. State of Bihar, (1984) 3 SCC
14″, the Hon’ble Apex Court has held at Para 32 of the judgments 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
26bail, 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.”
25) For the foregoing discussion, this Court is of the opinion
that it may meet the ends of justice in case the impugned detention order
bearing No. PSA/161 24.05.25, issued by the respondent No. 2, is set
aside and the petitioner/detenu is ordered to be released from his
preventive detention under the aforesaid order.
26) It is accordingly ordered.
27) Copy of this order be immediately forwarded to the
Respondents 2 to 4 for compliance.
28) Copy of the detention record is ordered to be returned to the
learned G A, concerned.
29) Disposed of.
(MOHD. YOUSUF WANI)
JUDGE
SRINAGAR:
28.04.2026
"Ayaz"
i) Whether the Judgment is reportable in law books/journals: ? No.
ii) Whether judgment is reportable in Media(Print/Electronic) ? No.
Vijay Kumar
2025.11.17 13:37
I attest to the accuracy and
integrity of this document
