Tehsil Marh District Jammu vs Udhampur on 9 July, 2026

Jammu & Kashmir High Court

Tehsil Marh District Jammu vs Udhampur on 9 July, 2026

                                                                                   2026:JKLHC-JMU:2015


     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

HCP No.162/2025
CM No.7711/2025
                                         Reserved on:            02.07.2026
                                         Pronounced on: 09.07.2026
                                         Uploaded on:   09.07.2026
                                         Whether the operative part or full
                                         judgment is pronounced:            Full

Shamma, S/o Ali Goheir,
R/o Rajpura Mandi,
Tehsil Marh District Jammu.

                                               ...Petitioner(s)

           Through: Mr. Ajaz Chowdhary, Advocate.
                             Vs.
1. Union Territory of J&K through
  Principal Secretary, Home Department,
  Civil Secretariat, Jammu.

2. The District Magistrate, Jammu.

3. The Superintendent, District Jail,
   Udhampur.

                                              ...Respondent(s)

           Through: Mr. Pawan Dev Singh, Dy. AG.

CORAM: HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
                           JUDGMENT

1. Vide detention Order No. PSA 17 of 2025 dated 15.10.2025

(for short ‘impugned order’) passed by respondent No.2-

District Magistrate, Jammu, the petitioner was ordered to be

detained under preventive custody in terms of Section-8(1) (a)

of J&K Public Safety Act, 1978 (for short ‘the Act’) with a

view to prevent him from acting in any manner prejudicial to

the ‘maintenance of the public order’.

2. Through the medium of the present petition, petitioner

seeks quashment of the aforesaid detention order on the

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grounds that the detenue, in terms of the impugned order,

has been detained under the Public Safety Act, on false and

flimsy grounds without any justification; that the detenue has

not been provided the material/other relevant documents

relied upon by the detaining authority, so as to make an

effective representation before the Government as well as to

the detaining authority and that the same have not been read

over and explained to him in a language he understood; that

he was not informed that he can make a representation before

the Government as well as to the detaining authority,

therefore, a valuable right of the detenue stands defeated; that

the petitioner was already discharged from FIR No. 65/2025

at the time when the detention order was issued; that the

family members of the detenue was not informed about the

detention of the petitioner, in fact, notice of detention was

handed over to the brother of the petitioner after four days

from the date when the petitioner was taken into custody.

3. Pursuant to notices, counter affidavit has been filed by

respondent No. 2-District Magistrate, Jammu, vehemently,

resisting the petition. It is contended that keeping in view the

prejudicial activities of the detenue, his preventive detention

has been ordered so as to deter him from acting or indulging

in prejudicial activities; that in the instant case there is

enough material against the detenue which is highly

suggestive of the fact that the normal law of the land is not

sufficient to prevent him from continuing with his anti-

national activities and it is evident that the detenue has the
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propensity to repeat the commission of crime which was the

likelihood of disturbing the public order.

4. Heard learned counsel for the parties, perused the detention

record produced by learned counsel for the respondents and

considered.

5. The first contention raised by the petitioner is that the

detenue has not been provided the material/ other relevant

documents on the basis thereof detention order has been

passed rendering the petitioner unable to make an effective

representation and that the same have not been read over and

explained to him in a language he understood. A perusal of

the detention record would show that upon execution of the

impugned detention order, total 92 leaves of relevant

documents came to be supplied to the detenue against proper

receipt and the same have been read over in English and

explained to the detenue in the languages Urdu/Dogri

understood by him. Thus, the contention of the petitioner in

this regard is not sustainable.

6. The second contention raised by the learned counsel for the

petitioner is that the detenue was not informed about his right

to make representation to the Government against the

detention order. From the perusal of the Execution Report, it

transpires that the detenue was informed about his right to

make representation to the Government as well as the

detaining authority against the detention order, if he so

desired. Thus, the said contention of the petitioner is also not

sustainable.

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7. Third ground raised by the petitioner is that since the detenue

was granted bail in one of the FIRs being FIR No. 65/2025,

the preventive detention could not have been ordered. A

perusal of the grounds of detention reveals that the factum of

grant of bail was very much within the consideration of the

detaining authority while arriving at subjective satisfaction.

Once the authority has taken note of the bail order and still

found the detenue’s activities prejudicial, the detention order

would not be rendered illegal. Preventive detention and

criminal prosecution operate in different fields. Acquittal or

grant of bail in a criminal case does not ipso facto debar the

competent authority from passing an order of preventive

detention if the authority is satisfied that the activities of a

person are prejudicial to the security of the State or

maintenance of public order. The Hon’ble Supreme Court in

“Haradhan Saha v. State of West Bengal & Ors” reported in

(1975) 3 SCC 198 has authoritatively held that prosecution

in a criminal case and preventive detention are not

synonymous and that an order of detention can validly be

passed even when prosecution is pending. Relevant portion in

paragraphs No. 32 to 34 of the judgment for the ease of

reference is extracted below:-

“32. The power of preventive detention is qualitatively
different from punitive detention. The power of
preventive detention is a precautionary power
exercised in reasonable anticipation. It may or
may not relate to an offence. It is not a parallel
proceeding. It does not overlap with prosecution
even if it relies on certain facts for which

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prosecution may be launched or may have been
launched. An order of preventive detention may
be, made before or during prosecution. An order of
preventive detention may be made with or without
prosecution and in anticipation or after discharge
or even acquittal. The pendency of prosecution is
no bar to an order of preventive detention. An
order of preventive detention is also not a bar to
prosecution.

33. Article 14 is inapplicable because preventive
detention and prosecution are not synonymous.
The purposes are different. The authorities are
different. The nature of proceedings is different.
In a prosecution an accused is sought to be
punished for a past act. In preventive detention,
the past act is merely the material for inference
about the future course of probable conduct on the
part of the detenu.

34. The recent decisions of this Court on this subject
are many. The decisions in Borjahan Gorey v.
State of W. B., Ashim Kumar Ray V. State of W.
B.; Abdul Aziz V. District Magistrate, Burdwan and
Debu Mahato V. State of W. B. correctly lay down
the principles to be followed as to whether a
detention order is valid or not. The decision
in Biram Chand v. State of U. P. which is a
Division Bench decision of two learned Judges is
contrary to the other Bench decisions consisting
in each case of three learned Judges. The
principles which can be broadly stated are these.
First, merely because a detenu is liable to be tried
in a criminal court for the commission of a
criminal offence or to be proceeded against for
preventing him from committing offences dealt
with in Chapter VIII of the Code of Criminal
Procedure would not by itself debar the
Government from taking action for his detention
under the Act. Second, the fact that the Police
arrests a person and later on enlarges him on bail
and initiates steps to prosecute him under
the Code of Criminal Procedure and even lodges a

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first information report may be no bar against the
District Magistrate issuing an order under the
preventive detention. Third, where the concerned
person is actually in jail custody at the time when
an order of detention is passed against him and is
not likely to be released for a fair length of time,
it may be possible to contend that there could be
no satisfaction on the part of the detaining
authority as to the likelihood of such a person
indulging in activities which would jeopardise the
security of the State or the public order. Fourth,
the mere circumstance that a detention order is
passed during the pendency of the prosecution
will not violate the order. Fifth, the order of
detention is a precautionary measure. It is based
on a reasonable prognosis of the future behaviour
of a person based on his past conduct in the light
of the surrounding circumstances.”

Similarly, in “Union of India v. Paul Manickam reported in

(2003) 8 SCC 342″, it has been held that merely because a

person is in custody or has been granted bail does not

preclude the detaining authority from invoking preventive

detention laws if there exists compelling necessity for doing

so.

8. Fourth ground urged by the learned counsel for the petitioner

is that the family members of the detenue was not informed

about the detention of the petitioner. From the perusal of the

record, it transpires that vide Order No. DMJ/JC/PSA/25-

26/1986-89 father of the detenue, namely, Ali Goheir was

informed regarding the detention of the deteue under the

provisions of Section 8 of the Jammu and Kashmir Public

Safety Act, 1978. In the said order, it has also been mentioned

that grounds of detention have also been furnished to detenue

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and that he has also been informed about his right to make a

representation against the impugned detention order.

9. The detaining authority, before invoking the preventive

detention, discussed various grounds for detention,

incorporating that the detenue has been involved in drug

related crimes under the NDPS Act and is facing charges

related to theft and as many as five FIRs bearing FIR No.

69/2024, 150/2021, 32/2022, 65/2025 and 143/2025 have

been registered against the detenue; that the detenue’s

repeated criminal behavior has caused significant harm to the

local community and society as a whole; that the detenue is a

habitual offence whose repeated involvement in criminal

activities demonstrates that the existing substantive laws

have been insufficient in deterring or curbing his unlawful

conduct; that the detenue poses a substantial threat to the

peace and stability of society; that the detenue’s repeated

involvement in lawful activities continues to disturb public

order and contributes to growing unrest and disorder within

the community.

10. Perusal of the detention record would indicate that the

detenue is a habitual criminal/bovine smuggler/drug peddler

indulged in various crimes like attempt to murder, land

grabbing, illegal transportation of narcotics, theft etc and is

involved in multiple criminal cases. It is further asserted in

the record that if he is released from custody, he may again

indulge in such criminal/unlawful activities. The aforestated

reasons persuaded the Detaining authority to curb his
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activities to order detention of the detenue under the

provisions of Public Safety Act.

11. Right of personal liberty is a most precious right guaranteed

under the Constitution of India. A person is not to be deprived

of his personal liberty, except in accordance with procedures

established under law and the procedure as laid down in the

case “Maneka Gandhi vs. Union of India, (1978 AIR SC

597)”, is to be just and fair. The personal liberty may be

curtailed where a person faces a criminal charge or is

convicted of an offence and sentenced to imprisonment.

Where a person is facing trial on a criminal charge and is

temporarily deprived of his personal liberty owing to criminal

charge framed against him, he has an opportunity to defend

himself and to be acquitted of the charge in case prosecution

fails to bring home his guilt. Where such person is convicted

of offence, he still has satisfaction of having been given

adequate opportunity to contest the charge and also adduce

evidence in his defense.

12. Framers of the Constitution, however, have, by incorporating

Article 22(5) in the Constitution, left room for detention of a

person without a formal charge and trial and without such

person being held guilty of an offence and sentenced to

imprisonment by a competent court. Its aim and object are to

save society from activities that are likely to deprive a large

number of people of their right to life and personal liberty. In

such a case it would be dangerous, for the people at large, to

wait and watch as by the time ordinary law is set into motion,
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the person, having dangerous designs, would execute his

plans, exposing general public to risk and causing colossal

damage to life and property. It is, for that reason, necessary to

take preventive measures and prevent a person bent upon to

perpetrate mischief from translating his ideas into action.

Article 22(5) of the Constitution of India, therefore, leaves

scope for enactment of preventive detention law.

13. Referring to the observations made by the Constitution Bench

of the Supreme Court in the case of ‘The State of Bombay v.

Atma Ram Shridhar Vaidya AIR 1951 SC 157‟ would be

advantageous. Paragraph 5 of the said judgment lays law on

the point, which is profitable to be reproduced hereunder:

“5. It has to be borne in mind that the legislation in
question is not an emergency legislation. The powers
of preventive detention under this Act of 1950 are in
addition to those contained in the Criminal
Procedure Code, where preventive detention is
followed by an inquiry or trial. By its very nature,
preventive detention is aimed at preventing the
commission of an offence or preventing the detained
person from achieving a certain end. The authority
making the order therefore cannot always be in
possession of full detailed information when it
passes the order and the information in its
possession may fall far short of legal proof of any
specific offence, although it may be indicative of a
strong probability of the impending commission of a
prejudicial act. Section a of the Preventive Detention
Act therefore requires that the Central Government
or the State Government must be satisfied with
respect to any person that with a view to preventing
him from acting in any manner prejudicial to (1) the
defence of India, the relations of India with foreign
powers, or the security of India, or (2) the security of
the State or the maintenance of public order, or (3)
the maintenance of supplies and services essential

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to the community ……… it is necessary So to do,
make an order directing that such person be
detained. According to the wording of section 3,
therefore, before the Government can pass an order
of preventive detention it must be satisfied with
respect to the individual person that his activities
are directed against one or other of the three objects
mentioned in the section, and that the detaining
authority was satisfied that it was necessary to
prevent him from acting in such a manner. The
wording of the section thus clearly shows that it is
the satisfaction of the Central Government or the
State Government on the point which alone is
necessary to be established. It is significant that
while the objects intended to be defeated are
mentioned, the different methods, acts or omissions
by which that can be done are not mentioned, as it is
not humanly possible to give such an exhaustive list.
The satisfaction of the Government however must be
based on some grounds. There can be no satisfaction
if there are no grounds for the same. There may be a
divergence of opinion as to whether certain grounds
are sufficient to bring about the satisfaction
required by the section. One person may think one
way, another the other way. If, therefore, the
grounds on which it is stated that the Central
Government or the State Government was satisfied
are such as a rational human being can consider
connected in some manner with the objects which
were to be prevented from being attained, the
question of satisfaction except on the ground of
mala fides cannot be challenged in a court. Whether
in a particular case the grounds are sufficient or
not, according to the opinion of any person or body
other than the Central Government or the State
Government, is ruled out by the wording of the
section. It is not for the court to sit in the place of
the Central Government or the State Government and
try to deter- mine if it would have come to the same
conclusion as the Central or the State Government.
As has been generally observed, this is a matter for
the subjective decision of the Government and that
cannot be substituted by an objective test in a court

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of law. Such detention orders are passed on
information and materials which may not be strictly
admissible as evidence under the Evidence Act in a
court, but which the law, taking into consideration
the needs and exigencies of administration, has
allowed to be considered sufficient for the subjective
decision of the Government.”

14. In accordance with the legal position, afore-stated, settled by

the Six-Judge Constitution Bench way back in the year

1951, the scope of looking into the manner in which the

subjective satisfaction is arrived at by the detaining authority,

is limited. This Court, while examining the material, which is

made basis of subjective satisfaction of the detaining

authority, would not act as a court of appeal and find fault

with the satisfaction on the ground that on the basis of the

material before detaining authority another view was possible.

15. The courts do not even go into the questions as to whether the

facts mentioned in the grounds of detention are correct or

false. The reason for the rule is that to decide this, evidence

may have to be taken by the courts and that it is not the

policy of the law of preventive detention. This matter lies

within the competence of the advisory board.

16. Those who are responsible for national security or for

maintenance of public order must be the sole judges of what

the national security, public order or security of the State

requires. Preventive detention is devised to afford protection to

society. The object is not to punish a man for having done

something but to intercept before he does it and to prevent

him from doing. Justification for such detention is suspicion

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or reasonable probability and not criminal conviction, which

can only be warranted by legal evidence. Thus, any preventive

measures, even if they involve some restraint or hardship

upon individuals, as held by the Supreme Court in the case

„Ashok Kumar v. Delhi Administration & Ors., AIR 1982

SC 1143‟, do not contribute in any way of the nature of

punishment.

17. Observing that the object of preventive detention is not to

punish a man for having done something but to intercept and

to prevent him from doing so, the Supreme Court held in the

case “Naresh Kumar Goyal v. Union of India & Ors., 2005

(8) SCC 276″, and reiterated in the judgment in a case titled

“Union of India & Anr. v. Dimple Happy Dhakad (AIR 2019

SC 3428)” that an order of detention is not a curative or

reformative or punitive, but a preventive action, acknowledged

object of which being to prevent anti-social and subversive

elements from endangering the welfare of the country or

security of the nation or from disturbing public tranquility or

from indulging in anti-national activities or smuggling

activities or from engaging in illicit traffic in narcotic drugs

and psychotropic substances, etc. Preventive detention is

devised to afford protection to society. Rulings on the subject

have consistently taken the view that preventive detention is

devised to afford protection to society. The object is not to

punish a man for having done something but to intercept

before he does it and to prevent him from doing so.

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18. In view of the foregoing discussion and the settled legal

position, impugned detention order is upheld and the petition

is found devoid of any merit and is, accordingly, dismissed

along-with pending application(s).

19. Photocopy of the record, as produced, be returned to learned

counsel for respondents.

(M A CHOWDHARY)
JUDGE
JAMMU
09.07.2026
Naresh/Secy.

          Whether the order is reportable:      Yes
          Whether the order is speaking:        Yes




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