SUHAIL FAYAZ NAJAR vs UNION TERRITORY OF J AND K AND ORS. (HOME)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR


HCP No. 298/2025

Reserved on: 31.08.2026

Pronounced on: 02.09.2026

Uploaded on: 02.09.2026
Whether the operative part or full
judgment is pronounced - Full


Suhail Fayaz Najar
S/O Fayaz Ahmad Najar,
R/O Hariparigam
Tehsil Awantipora, District Pulwama.


…Petitioner(s)

Through: Adv. Waseem Shamas.


Vs.

1. Union Territory of J&K through
Principal Secretary to Govt.,
Home Department,
Civil Sectt. Srinagar.

2. District Magistrate, Pulwama.

3. Senior Superintendent of Police,
Awantipora.

4. Superintendent District Jail,
Udhampur, Jammu.

…Respondent(s)

Through: GA Jehangir Ahmad Dar.

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

JUDGMENT


1. Through the medium of the instant petition, the petitioner
has called in question the Detention Order No.
33/DMP/PSA/25 dated 10.07.2025 passed by the

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respondent No. 2-District Magistrate Pulwama, whereby
the petitioner has been detained under the provisions of
the Jammu and Kashmir Public Safety Act, 1978 (for
short, “the Act”), on the satisfaction that his activities were
prejudicial to the security of the State. The petitioner seeks
quashing of the said detention order and his immediate
release from preventive detention.

2. The case projected by the petitioner is that the impugned
order suffers from non-application of mind and has been
passed on the basis of vague, stale and irrelevant material.
It is submitted that the petitioner had earlier figured in
case FIR No. 46/2021 under Sections 18, 19, 20, 38 UA(P)
Act registered in Police Station Awantipora, but was
subsequently enlarged on bail by the competent Court
dropping these charges. Thereafter, on 03.02.2023 , he
was detained in proceedings under Sections 107/151
Cr.PC and was released by the competent Magistrate on
furnishing bond.

3. Another grievance raised by the petitioner is that the
material relied upon by the detaining authority, on the
basis whereof, the subjective satisfaction is stated to have
been arrived at, was neither supplied nor read over in a
language understood by the petitioner. It is contended that
non-supply of such material deprived the petitioner of his
valuable constitutional right to make an effective and
meaningful representation against his detention.

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4. The respondents, in opposition to the petition, have
defended the detention order. It is submitted that the
detaining authority, after carefully examining the dossier
and the material placed before it, arrived at the requisite
subjective satisfaction that the petitioner, if allowed to
remain at large, was likely to indulge in activities
prejudicial to the security of the State.

5. Learned counsel for the petitioner while arguing the matter
submits that despite the aforesaid factual position, the
detaining authority proceeded to direct his preventive
detention without there being any fresh, specific or
proximate material showing that the petitioner was
indulging in activities prejudicial to the security of the
State; that the petitioner as per Police dossier was working
as a Waiter in a Hotel and there was no material disclosed
to him showing his involvement in any activity connected
with the alleged threat to the security of the State or to the
peaceful conduct of the Annual Shri Amarnath Ji Yatra.

6. Learned counsel for the respondents, ex-adverso, contends
that the detaining authority was conscious of the fact that
the petitioner had been admitted to bail in case FIR No.
46/2021 and that the said circumstance had duly been
taken into consideration while passing the detention order;
that the petitioner's release in proceedings under Sections
107/151 Cr.PC twice does not operate as a bar to the
exercise of power under the Public Safety Act. It is

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submitted that preventive detention is a distinct
jurisdiction and the fact that proceedings under the
Cr.P.C. had been initiated or that the petitioner had been
released therefrom does not oust the jurisdiction of the
detaining authority.

7. Heard learned counsel for the parties, and perused the
pleadings as well as the detention record produced by the
learned counsel for the respondents and considered the
matter.

8. On perusal of the detention record it is revealed that the
detenue was found involved in a case registered vide FIR
No. 46/2021 u/s 18, 19, 20, 38 UA(P) Act at Police Station
Awantipora wherein after discharge, he was admitted to
bail. The grounds of detention reflect that the detenue was
working as an ‘OGW’ for the banned terrorist organizations
LeT/JeM by way of rendering logistic support like food,
shelter and information about the security forces to the
terrorists. The petitioner came to be arrested in the said
case and during questioning he confessed that he was
working as ‘OGW’ for those banned terrorist organizations,
particularly to one terrorist namely Kifayat Ramzan Sofi,
who was later on neutralized by the security forces. The
petitioner, however, was later released on bail granted in
his favour by the court of law.

9. At the outset, it needs to be emphasized that preventive
detention constitutes an extraordinary encroachment upon

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the personal liberty of a citizen. The power is preventive
and not punitive. It is intended to prevent a person from
doing something which the law seeks to prevent and not to
punish him for something which he has already done.

10. The constitutional safeguards surrounding preventive
detention are, therefore, required to be strictly complied
with. Article 22(5) of the Indian Constitution, mandates
communication of the grounds of detention to the detenue
and further requires that he be afforded the earliest
opportunity of making a representation against the order.

11. The Supreme Court in Khudiram Das v. State of
West Bengal reported as (1975) 2 SCC 81 , has made it
clear that although the satisfaction of the detaining
authority is subjective, it is not wholly immune from
judicial review. The Court can examine, inter alia , whether
the authority had applied its mind, whether the
satisfaction was based on relevant material and whether
the exercise of power suffered from any infirmity which
goes to the root of the detention. The Court held as under:-
“…It is, therefore, not only the right of
the Court, but also its duty as well, to
examine what are the basic facts and
materials which actually and in fact
weighed with the detaining authority
in reaching the requisite satisfaction.
The judicial scrutiny cannot be
foreclosed by a mere statement of the
detaining authority that it has taken
into account only certain basic facts
and materials and though other basic
facts and materials were before it, it
has not allowed them to influence its

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satisfaction. The Court is entitled to
examine the correctness of this
statement and determine for itself
whether there were any other basic
facts or materials, apart from those
admitted by it, which could have
reasonably influenced the decision of
the detaining authority and for that
purpose, the Court can certainly
require the detaining authority to
produce and make available to the
Court the entire record of the case
which was before it. That is the least
the Court can do to ensure observance
of the requirements of law by the
detaining authority….”

12. The existence of subjective satisfaction does not
mean that the Court must accept every recital contained in
the detention order as conclusive. The Court is entitled to
examine whether there was material before the detaining
authority which could reasonably lead to the satisfaction
recorded by it.

13. In the present case, the main material against the
petitioner appears to be his involvement in FIR No.
46/2021 registered under the UAPA and his subsequent
undertaking of bonds under Sections 107/151 Cr.PC
twice. So far as FIR No. 46/2021 is concerned, the
petitioner had already been enlarged on bail. The
respondents fairly conceded that the detaining authority
was aware of the order granting bail in favour of the
petitioner. Mere awareness of the order of bail, however,
cannot by itself satisfy the requirement of application of
mind. Once a person has been released on bail, the
detaining authority is required to consider whether there

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exists some fresh or continuing material which
demonstrates that, notwithstanding, his release there is a
real and proximate likelihood of his engaging in activities
prejudicial to the security of the State.

14. The Supreme Court in Sama Aruna v. State of
Telangana , reported as (2018) 12 SCC 150, reiterated
that preventive detention must rest upon a reasonable
prognosis of future conduct based upon past conduct
viewed in the surrounding circumstances, and that there
must be a live and proximate link between the past
conduct and the imperative need for detention. Where that
link is snapped, detention becomes punitive rather than
preventive.

15. This principle has subsequently been reiterated in
Khaja Bilal Ahmed v. State of Telangana reported as
(2020) 13 SCC 632 , where the Supreme Court held that
previous criminal activities may be relevant only where
they have a direct nexus with the immediate necessity of
detention. Mere reference to stale criminal cases cannot
furnish the foundation for preventive detention in the
absence of a clear causal connection with the apprehended
future conduct. Relevant part from the said judgment is
reproduced hereunder:-
“…The satisfaction to be arrived at by
the detaining authority must not be
based on irrelevant or invalid
grounds. It must be arrived at on the
basis of relevant material, material

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which is not stale and has a live link
with the satisfaction of the detaining
authority. The order of detention may
refer to the previous criminal
antecedents only if they have a direct
nexus or link with the immediate need
to detain an individual. If the previous
criminal activities of the appellant
could indicate his tendency or
inclination to act in a manner
prejudicial to the maintenance of
public order, then it may have a
bearing on the subjective satisfaction
of the detaining authority. However,
in the absence of a clear indication of
a causal connection, a mere reference
to the pending criminal cases cannot
account for the requirements
of Section 3 . It is not open to the
detaining authority to simply refer to
stale incidents and hold them as the
basis of an order of detention. Such
stale material will have no bearing on
the probability of the detenue
engaging in prejudicial activities in
the future…”

16.
Tested on the aforesaid principles, this Court finds
that the material relied upon against the petitioner does
not disclose any sufficiently specific or proximate activity
subsequent to his release on bail which could furnish the
necessary live link between his past conduct and the
imperative necessity of his preventive detention. The
subsequent detention of the petitioner under Sections
107/151 Cr.PC requiring Bonds for good conduct, also
does not advance the case of the respondents.

17. The proposition urged on behalf of the respondents
that proceedings under Sections 107/151 Cr.PC do not, as
a matter of law, oust the jurisdiction of the detaining
authority under the Act, is acceptable. Preventive

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detention and preventive proceedings under the Cr.PC
operate in different fields. But that proposition does not
answer the real question arising in the present case. The
issue is not whether the detaining authority had
jurisdiction to invoke the Act after the petitioner had been
released under Sections 107/151 Cr.PC, but the issue is
whether the material available to the detaining authority
disclosed a rational and proximate basis for concluding
that the petitioner was required to be detained to prevent
him from acting prejudicially to the security of the State.

18. The fact that the petitioner had been proceeded
against under Sections 107/151 Cr.PC and thereafter
released by the competent Magistrate was a relevant
circumstance requiring consideration. The record,
however, does not demonstrate that the said circumstance
was considered in its proper perspective or that any fresh
material emerged thereafter, establishing, likelihood of the
petitioner indulging in activities prejudicial to the security
of the State.

19. The reference made by the detaining authority to the
Shri Amarnath Ji Annual Yatra (SANJAY) also does not
cure the aforesaid defect. The sensitivity of the Yatra and
the obligation of the State to maintain its peaceful conduct
are undoubtedly matters of great importance. However, a
general apprehension arising from the sensitive nature of
an event cannot substitute for specific material connecting

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the particular detenue with a threat to the security of the
State. The reference of SANJAY was made in the detention
order passed on 10.07.2025. Even the next SANJAY, 2026
has also been recently concluded peacefully. Preventive
custody is detention of an individual based upon his
anticipated future conduct. It cannot be justified merely by
pointing to a general security situation or a sensitive
public event unless the material before the detaining
authority establishes the necessary nexus between the
individual and the apprehended threat.

20. Next plea raised by the petitioner is that the material
relied upon by the detaining authority was not supplied to
him. To rebut the said plea, the respondents have not been
able to demonstrate from the record that the entire
material relied upon for arriving at the subjective
satisfaction was furnished to the petitioner so as to enable
him to make an effective representation. The law in this
regard is well settled. The right of representation under
Article 22(5) is not an empty formality. Where the
detaining authority relies upon documents or material in
arriving at its satisfaction, the detenue must ordinarily be
furnished copies thereof. Without such material, the
grounds communicated to the detenue may remain
incomplete and the opportunity to make an effective
representation becomes illusory. The Supreme Court has
reiterated that failure or delay in supplying relied-upon

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documents can amount to denial of the constitutional right
to make an effective representation. In the present case,
the respondents have not satisfactorily established that
the material which constituted the basis of the detention
was supplied to the petitioner. The omission assumes
greater significance because the petitioner was required to
explain and contest the allegations arising out of his
previous FIR and subsequent proceedings under Sections
107/151 Cr.P.C.

21. This Court is of the view that the grounds of
detention lack the requisite degree of specificity. General
expressions such as the petitioner's activities being
prejudicial to the security of the State, without disclosing
the precise acts, circumstances and material which
demonstrate such propensity, do not afford a meaningful
opportunity to the detenue to meet the allegations.

22. The petitioner has also specifically pleaded that the
grounds of detention were neither read over nor explained
to him in a language, fully understandable to him. The
requirement of Article 22(5) of the Constitution is not
satisfied by a mere formal communication or physical
delivery of the grounds of detention. The object of
communicating the grounds is to enable the detenue to
understand the basis of his detention and to make an
effective and meaningful representation against the same.
Consequently, where the detenue is not conversant with

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the language in which the grounds have been prepared,
the grounds must be read over and explained to him in a
language which he understands. The obligation assumes
added significance in a case of preventive detention, where
the detenue is called upon to challenge the subjective
satisfaction of the detaining authority and represent
against, within the limited period available to him. Unless
the grounds are intelligible to the detenue, the
constitutional safeguard guaranteed under Article 22(5)
remains just illusory.

23. In the present case, there is no satisfactory material
on record to establish that the grounds of detention were
read over and explained to the petitioner in a language
fully understood by him. A mere endorsement or recital to
that effect, without supporting material, cannot, in the
facts of the present case, be treated as sufficient
compliance where the detenue has specifically disputed
such communication and understanding. The failure to
establish that the grounds of detention were effectively
communicated to and understood by the detenue has
materially impaired his right to make an effective
representation against the order of detention. Such failure
constitutes a violation of the constitutional safeguard
contained in Article 22(5) and furnishes an independent
ground for invalidating the detention order.

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24. Thus, apart from the infirmities noticed, hereinabove,
relating to non-application of mind, vagueness of the
grounds, absence of a live and proximate link between the
alleged past conduct and the necessity for present
preventive detention, and non-supply of the relied-upon
material, the impugned detention order is also vitiated by
failure to demonstrate effective communication of the
grounds of detention to the petitioner, in a language
understood by him.

25. The contention of the respondents that the detaining
authority had considered the petitioner's bail order does
not persuade this Court otherwise. An assertion of
consideration cannot substitute for actual consideration
apparent from the record. The question is whether the
authority considered the implications of the petitioner's
release on bail and whether there was any subsequent
material demonstrating his propensity to indulge in
prejudicial activities.

26. The Court does not sit as an appellate authority over
the subjective satisfaction of the detaining authority.
Nevertheless, where the satisfaction is shown to have been
arrived at without proper consideration of relevant
circumstances, on stale or vague material, or where
constitutional safeguards have not been complied with, the
Court cannot remain a silent spectator.

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27. For the foregoing reasons, the petition is allowed. The
detention order No. 33/DMP/PSA/25 dated 10.07.2025
passed by respondent No.2-Distrit Magistrate, Pulwama
under the Jammu and Kashmir Public Safety Act, 1978,
directing preventive detention of the petitioner herein on
the ground that his activities are prejudicial to the security
of the State, is hereby quashed . The respondents are
directed to release the petitioner-detenue namely Suhail
Fayaz Najar S/O Fayaz Ahmad Najar R/O Hariparigam,
Tehsil Awantipora District Pulwama, forthwith from
preventive detention, if his custody is not required in
connection with any other case or proceedings in
accordance with law.

28. Scanned copy of the detention record be returned to

learned counsel for the respondents against proper receipt.

29. The petition stands disposed of accordingly.


( M. A. CHOWDHARY )
JUDGE
Srinagar
02.09.2026
Muzammil. Q


Whether the order is reportable: Yes / No