PARVAIZ AHMAD GANIE vs UNION TERRITORY OF J AND K AND OTHERS (HOME / POLICE)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR


HCP No. 25/2026

Reserved on: 19.05.2026
Pronounced on: 22.05.2026
Uploaded on: 25.05.2026
Whether the operative part or full
judgment is pronounced - Full


Parvaiz Ahmad Ganie
S/O Mohd Ramzan Ganie,
R/O Itoo Mohalla Zainapora,
District Shopian.

…Petitioner(s)

Through: Adv. Usman Gani.


Vs.

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

2. Divisional Commissioner Kashmir.

3. Senior Superintendent of Police,
Shopian.

4. Superintendent Central Jail,
Jammu.

…Respondent(s)

Through: Adv. Haris Khan, AC vice
Sr.AAG Mohsin S. Qadri.


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

JUDGMENT

1. Through the medium of this Habeas Corpus Petition filed under
Article 226 of the Constitution of India, the petitioner seeks
quashment of Detention Order No. dated
DIVCOM “K”/04/2026

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09.01.2026 (impugned order) passed by respondent No.2-
Divisional Commissioner Kashmir, under the provisions of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 (PITNDPS Act), whereby he has been
placed under preventive detention.
2. The impugned detention order has been assailed by the
petitioner on the grounds, that grounds of detention are stale,
remote and lacking proximity with the object sought to be
achieved by the impugned order; that the detenue had already
been granted bail in FIR No. 89/2024 registered under the
provisions of the NDPS Act for the commission of offence under
section 8/20 and that the challan/charge-sheet in the said case
has already been presented before the competent trial Court
where the detenue is facing trial; that once the ordinary criminal
law has been set into motion and the detenue is subject to trial,
the detaining authority could not have exercised jurisdiction
under the PITNDPS Act, on the basis of a two-year-old case; that
the other grounds of detention are vague, lacking in material
particulars and do not attribute any specific overt act or allegation
to the detenue, warranting preventive detention. that the
detaining authority has relied upon earlier FIR/case, which had
no live nexus, with no subjective satisfaction recorded by the
detaining authority.
3. Per contra, in their counter affidavit, the respondents stated that
the detention order has been passed strictly in accordance with
law and after due application of mind by the detaining authority;
that the activities of the detenue were continuous and recurring in

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nature and had direct bearing upon preventing illicit traffic in
narcotic drugs and psychotropic substances; that mere grant of
bail to the detenue in the criminal case or presentation of charge-
sheet before the trial court does not denude the detaining
authority of jurisdiction to invoke preventive detention, particularly
when the material on record discloses continuing propensity of
the detenue to indulge in illicit trafficking activities; that the
grounds of detention are specific, definite and based upon
relevant material supplied to the detenue; that the grounds relied
upon by the detaining authority are proximate in point of time and
reveal a live and continuing link between the prejudicial activities
of the detenue and the necessity to prevent him, from acting in a
manner prejudicial to public order.
4. Heard learned counsel for the parties, perused the detention
record produced by the respondents and considered the matter.
5. Preventive detention, though an exceptional measure, is
recognized under the constitutional framework envisaged under
Article 22 of the Constitution of India. The scope of judicial review
in matters of preventive detention under the PITNDPS Act is
limited. The Court does not sit in appeal over the subjective
satisfaction recorded by the detaining authority. Interference is
warranted only where the detention order is shown to suffer from
procedural illegality, non-application of mind, consideration of
irrelevant material, or violation of constitutional/statutory
safeguards.
6. The main issue raised by learned counsel of the petitioner
pertains to alleged staleness of the grounds of detention. The law

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on the subject is well settled. The Hon’ble Supreme Court in
Sama Aruna v. State of Telangana reported as (2018) 12 SCC
150 , held that stale incidents having no live and proximate link
with the necessity of detention cannot constitute valid grounds for
preventive detention. However, the said judgment does not lay
down an inflexible proposition that every previous incident or
antecedent becomes stale merely because some time has
elapsed. The question whether grounds are stale depends upon
facts and circumstances of each case, the nature of activities
attributed to the detenue, continuity of conduct, and existence of
a live nexus between past conduct and future prejudicial
activities.
7. A perusal of the detention record reveals that as per discreet
reports from intelligence agencies, the detenue has been
repeatedly involved in activities prejudicial to preventing illicit
traffic in narcotic drugs and psychotropic substances. Record
further reveals that on 28.09.2024, Police Station Zainapora
received a specific and credible information to the effect that
detenue had illegally concealed a contraband substance ‘charas’
powder near his residential premises and upon receipt of the said
information, vide FIR No. 89/2024 under Sections 8/20 of the
NDPS Act case was registered at Police Station Zainapora, and
investigation was taken up accordingly. During the course of
investigation, and after obtaining a search warrant from the
Executive Magistrate, Zainapora, a search of the spot was
conducted in the presence of the said Magistrate; that during the
search operation, one nylon bag and one polythene bag were

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recovered from the yard of the house of the detenue, which had
been concealed underground; that upon examination, the said
bags were found to contain cannabis-like contraband substance,
namely ‘charas’ powder, weighing 01.916 Kg and 250 grams,
respectively; that the recoveries were effected strictly in
accordance with law and in the presence of the Executive
Magistrate Zainapora; that the contraband material seized in
case FIR No.89/2024 was sent to Forensic Science Laboratory
Srinagar, to ascertain its veracity; that the report of Forensic
Laboratory suggest that; “ The Exhibit No.TA-1371/24 and TA-
1372/24 were identified as Ganja;”
8. It further reveals that the detenue was bailed out by the
competent court in the said case; that the condition mentioned in
the bail order included that the detenue will not indulge in such
activities any further; that while the detenue was out on bail, he
had been clandestinely and discretely involved in such activities
and which cannot be agitated before the competent court of law
for cancellation of bail, necessitating his preventive detention to
curtail his drug related activities; that t he dossier placed before
the detaining authority refers not merely to isolated past incidents
but to a continuing pattern of conduct extending up to the period
immediately preceding the passing of the detention order; that
the material relied upon demonstrates that the activities of the
detenue were recurring and had not ceased; that the detention
order also reflects awareness of the fact that despite registration
of criminal case under the provisions of the Narcotic Drugs and
Psychotropic Substances Act and initiation of ordinary criminal

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law proceedings, the detenue continued to indulge in illicit
trafficking activities prejudicial to the objects sought to be
achieved under the PITNDPS Act.
9. Significantly, the detenue was bailed out in case FIR No.89/2024
under section 8/20 NDPS Act on 30.12.2024 by the court of
competent jurisdiction and the dossier has been prepared on
16.12.2025. The grounds of detention disclose proximate
incidents and recent activities forming the immediate basis of
detention. The contention of the petitioner that the detenue has
already been enlarged on bail and is facing trial pursuant to filing
of the charge-sheet also does not advance the case of the
petitioner. The law is well settled that preventive detention and
prosecution in a criminal case operate in distinct fields.
Preventive detention is aimed at preventing future prejudicial
conduct, whereas prosecution is punitive in nature for past acts
already committed. Mere pendency of trial or grant of bail in a
criminal case does not preclude the competent authority from
invoking preventive detention where the material demonstrates
likelihood of continuation of prejudicial activities. In Haradhan
Saha v. State of West Bengal , (1975) 3 SCC 198, the Hon’ble
Supreme Court held that pendency of prosecution or even
acquittal in criminal proceedings does not bar an order of
preventive detention, as both operate in separate jurisdictions
and for different purposes. Relevant portion in Paras 32 to 34 of
the Haradhan Saha judgment (supra) for the ease of reference is
extracted below:-

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"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 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

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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 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 Pebam Ningol Mikoi Devi v. State of Manipur ,
(2010) 9 SCC 618 , it has been observed that the detaining
authority is entitled to consider the overall conduct and
antecedents of the detenue while arriving at subjective
satisfaction.
10. The submission that the detention order is founded upon a two-
year-old case, is also without merit. The detention record reveals
that the earlier case has not been relied upon in isolation but
forms part of a chain of activities and antecedents demonstrating
the involvement and propensity of the detenue in illicit trafficking
activities. The detaining authority has considered the cumulative
effect of the material placed before it and has recorded subjective
satisfaction on the basis of continuing conduct and live nexus.

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11. Equally untenable is the contention regarding vagueness of the
grounds of detention. A reading of the grounds of detention
demonstrates that the detenue has been informed with sufficient
clarity regarding the allegations, FIR particulars, nature of
involvement and activities attributed to him. The grounds are
neither ambiguous nor lacking in material particulars so as to
disable the detenue from making an effective representation. The
argument that there is no specific allegation against the detenue
is contradicted by the detention record itself, which refers to his
active involvement in the activities forming basis of detention.
The earlier antecedents have only been referred to by the
detaining authority to demonstrate the conduct and propensity of
the detenue. The same cannot be said to be irrelevant or stale in
the facts of the present case. The record clearly establishes
continuity and proximity.
12. 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. reported as 2005 (8)
, and reiterated in the judgment in a case titled
SCC 276’ ‘Union
reported as (AIR
of India & Anr. v. Dimple Happy Dhakad’
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

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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.
13. In the present case, the material relied upon by the detaining
authority, including the involvement of the detenue in NDPS
related activities and the continuing propensity of the detenue to
engage in illicit trafficking, cannot be characterized as stale or
irrelevant. The detention order has not been founded upon
remote incidents disconnected from the present necessity of
detention. Rather, the material demonstrates a live and
proximate link between the activities of the detenue and the
necessity to prevent him from acting in a manner prejudicial to
illicit traffic in narcotic drugs and psychotropic substances.
14. Learned counsel for the petitioner has failed to demonstrate as to
how the subjective satisfaction recorded by the detaining
authority is vitiated by non-application of mind. The grounds of
detention are detailed and specific. The detenue has been
informed of the basis of detention and the material relied upon
has been supplied to him. The constitutional and statutory
safeguards appear to have been complied with.
15. The Court is conscious of the settled principle that personal
liberty is a cherished constitutional value. At the same time, the
power of preventive detention, when exercised in accordance

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with law and founded upon relevant material, cannot be
interfered with merely because another view is possible.
16. Having regard to the totality of circumstances and upon perusal
of the detention record, this Court is satisfied that the detention
order does not suffer from any legal infirmity warranting
interference in exercise of writ jurisdiction.
17. Consequently, the petition is found to be without merit and is
accordingly dismissed . The Detention Order No. DIVCOM
dated 09.01.2026 passed by respondent No.2-
“K”/04/2026
Divisional Commissioner Kashmir, is upheld.
18. Detention record be returned back to learned counsel for the

respondents.

( M. A. CHOWDHARY )
JUDGE
Srinagar
22.05.2026
Muzammil. Q

Whether the order is reportable: Yes / No