FIRDOUS AHMAD DAR vs UNION TERRITORY OF J AND K AND ORS. (HOME DEPARTMENT)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR


WP(Crl) No.654/2022
CrlM No.1203/2022

Reserved on: 03.09.2026

Pronounced on: 14.09.2026

Uploaded on: 14.09.2026

Whether the operative part or full
judgment is pronounced: Full

Firdous Ahmad Dar
S/O Abdul Rashid Dar
R/O Halmulla Sangam
Bijbehara, District Anantnag.

…Petitioner(s)

Through: Adv. Wajid Mohammad Haseeb.


Vs.


1. Union Territory of J&K
through Addl. Chief Secretary,
Home Department,
Civil Sectt. Srinagar.

2. District Magistrate, Anantnag.

3. Sr. Superintendent of Police,
Anantnag.

…Respondent(s)

Through: GA Ilyas Nazir Laway.



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 order of detention bearing No.
39/DMA/PSA/DET/2022 dated 25.06.2022 , passed by
respondent No.2-District Magistrate, Anantnag under
Section 8 of the Jammu and Kashmir Public Safety Act,

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1978 (for short, “the Act” ) whereby the petitioner has been
ordered to be detained with a view to prevent him from
acting in any manner prejudicial to the security of the
State.

2. Learned counsel for the petitioner, while assailing the
impugned order, has raised several grounds. The main
contention is that the detention order, though passed on
25.06.2022 , was not executed for a considerable period of
time; that the petitioner had approached this Court and
an interim order was passed, but the respondents did not
take effective steps for vacation of the said interim order;
that the delay in execution of the detention order cannot
be attributed to the petitioner; that Section 12 of the
Public Safety Act specifically deals with the powers
available to the authorities in relation to an absconding
person; that if the petitioner had, assumingly, been
absconding or concealing himself so as to prevent
execution of the detention order, the respondents should
have taken effective measures contemplated under Section
12 of the Public Safety Act; that the failure to invoke or
pursue such statutory measures belies the respondents'
assertion that the petitioner was deliberately evading
execution of the detention order.
3. Another limb of the argument is that one of the FIRs
namely FIR No. 384/2007 out of four FIRs against the
petitioner, had culminated in the petitioner's acquittal on

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25.10.2018 ; that the petitioner had also been granted bail
in the other criminal cases and that such material facts
were either not placed before the Detaining Authority or
were not considered by it; that the detention order,
therefore, suffers from non-application of mind and the
subjective satisfaction recorded therein stands vitiated.
4. Per contra, learned counsel appearing for the respondents,
in line with the reply filed by them, has opposed the
petition. It is submitted that the detention order could not
be executed because the petitioner after managing to of
the detention order, the warrant of detention and other
connected documents, had thereafter deliberately evaded
his arrest; that a person who himself evades execution of a
detention order cannot be permitted to take advantage of
the delay occasioned by his own conduct; that the
material placed before the Detaining Authority disclosed
that the activities of the petitioner were highly prejudicial
to the security of the State; that the reference has been
made to the various charge-sheets and criminal cases
registered against the petitioner, including allegations
concerning possession of arms; that the detention order
represents a genuine exercise of preventive jurisdiction
and that this Court, while exercising writ jurisdiction,
ought not to substitute its subjective satisfaction for that
of the Detaining Authority.

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5. Heard learned counsel for the parties also gone through
the pleadings and considered the same.
6. At the outset, it needs to be emphasised that preventive
detention is an extraordinary power. It is qualitatively
different from punitive detention. Its object is not to
punish a person for an act already committed, but to
prevent him from engaging in conduct which is
apprehended to be prejudicial to the security of the State
or maintenance of public order.
7. The Constitution Bench of the Supreme Court in
Haradhan Saha v. State of West Bengal reported as
(1975) 3 SCC 198 explained this distinction and held that
preventive detention is based upon a reasonable prognosis
of the future behaviour of a person founded upon his past
conduct and surrounding circumstances. The fact that
criminal prosecution is also possible does not, by itself,
exclude the power of preventive detention.
8. At the same time, the extraordinary nature of the power
makes it incumbent upon the Detaining Authority to
strictly comply with the constitutional and statutory
safeguards. The subjective satisfaction contemplated by
the Act must be genuine, founded upon relevant material
and arrived at after consideration of all material facts
having a bearing upon the necessity for preventive
detention.

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9. The first question which arises is whether the delay in
execution of the detention order renders the same invalid.
10. In Shafiq Ahmad v. District Magistrate, Meerut,
reported as (1989) 4 SCC 556 , the Supreme Court held
that whether a particular delay is unreasonable depends
upon the facts and circumstances of each case. Likewise,
in M. Ahamedkutty v. Union of India reported as (1990)
2 SCC 1 , the Supreme Court recognised that where the
delay is satisfactorily explained and is attributable to the
detenu's own conduct in evading arrest, the live link
between the prejudicial activity and the detention may not
necessarily be snapped. At the same time, the Court made
it clear that mere assertion of abscondence cannot, by
itself, furnish an adequate explanation. The principle was
also considered in Naresh Kumar Goyal v. Union of
India reported as (2005) 8 SCC 276 , wherein the
Supreme Court observed that the executing authorities
are required to remain vigilant in securing the person
against whom the detention order has been passed.
Preventive detention cannot be allowed to become a dead
letter by administrative inaction.
11. Section 12 of the Public Safety Act specifically deals
with a situation where the Government or the authorised
Officer has reason to believe that a person against whom a
detention order has been made has absconded or is
concealing himself so that the order cannot be executed.

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The provision enables the authorities to approach the
Magistrate and also to direct the person concerned to
appear before the specified Officer. The existence of this
provision assumes significance where the State seeks to
explain prolonged non-execution on the ground that the
proposed detenu was absconding. It is true that the
language of Section 12 is enabling in nature and failure to
invoke each and every measure contemplated therein,
cannot by itself, invalidate a detention order. Nevertheless,
where a prolonged delay is sought to be justified solely on
the ground that the petitioner was absconding, the
respondents must place before the Court credible material
demonstrating the efforts actually undertaken to secure
his presence.
12. There is no absolute rule that delay in execution of a
preventive detention order, by itself, automatically
invalidates the order. The question has to be examined in
the light of the explanation furnished by the respondents
and the circumstances responsible for such delay.
13. However, the present case stands on a somewhat
different footing. The petitioner asserts that an interim
order of this Court was operating and that the
respondents did not take effective steps for vacation
thereof. If the execution of the detention order was in fact
interdicted by a subsisting judicial order, the period
during which such order operated cannot ordinarily be

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characterised as unexplained administrative delay
attributable to the respondents. The question, therefore, is
not merely how much time elapsed, but what caused the
elapsed time .

14. The Supreme Court in M. Ahamedkutty (supra) and
Shafiq Ahmad (supra) has made it clear that the plea of
abscondence has to be examined in the factual context
and cannot be accepted merely as a convenient
explanation for unexplained delay.
15. In the present case, the assertion of the respondents
that the petitioner had obtained knowledge of the
detention order and thereafter evaded its execution has to
be tested against the contemporaneous record. If the
record establishes repeated and genuine attempts to
execute the warrant and the petitioner's deliberate
evasion, the delay would stand explained. Conversely, if
the record reveals that the respondents remained passive
and took no effective steps, the mere recital that the
petitioner was absconding cannot save the detention
order.

16. The respondents have also urged that the petitioner,
having evaded execution of the detention order, cannot be
permitted to take advantage of the resultant delay.
17. As per perusal of the pleadings, impugned detention
order came to be passed by the detaining authority on
25.06.2022 to prevent the petitioner from indulging into

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the activities prejudicial to the ‘security of State’.
Petitioner challenged the same at pre-execution stage on
27.09.2022 , when it was stayed by this Court. In the
meantime, petitioner had not absconded or evaded
execution of detention order, as he had attended
proceedings against him in a criminal case arising out of
FIR No.22/2011 of Police Station, Kothibagh, before the
trial court on 30.06.2022 , which had been made basis for
invoking his detention. Respondents did not explain or
placed on record any material so as to substantiate that
they had resorted to the provisions contained under
Section 12 of the Public Safety Act in relation to ab
absconding person so as to execute the warrant. The
respondents, having not taken any step, despite the
availability of the petitioner, have thus failed to explain the
inordinate delay in execution of the detention order with
effect from its passing on 25.06.2022 , which vitiates the
detention order itself.
18. The petitioner has next contended that FIR No.
384/2007 had culminated in his acquittal on 25.10.2018
and that the petitioner had been granted bail in the other
cases, but these material developments were not brought
to the notice of or considered by the Detaining Authority.
19. It is settled that an order of preventive detention can
be passed even where criminal proceedings are pending
and in appropriate circumstances, even after discharge or

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acquittal. Acquittal in a criminal case does not, in the
abstract, create an absolute bar to preventive detention.
The Supreme Court has reiterated that preventive
detention and criminal prosecution operate in different
fields. But that proposition does not mean that an
acquittal or grant of bail, where relevant, can simply be
ignored. Where such facts have a material bearing upon
the question whether the alleged past conduct continues
to furnish a live and rational basis for apprehending
future prejudicial activity, the Detaining Authority is
required to apply its mind to them.
20. The Supreme Court has repeatedly held that
suppression or non-consideration of vital facts having a
bearing upon the subjective satisfaction may vitiate the
detention order. In A. Annamalai v. State of Tamil Nadu,
reported as (2005) 9 SCC 705 and in the line of cases
dealing with non-application of mind, the Court has
emphasised that relevant material must be considered
before the subjective satisfaction is reached.
21. The respondents have relied upon the charge-sheets
and the allegations that the petitioner was involved in
activities prejudicial to the security of the State, including
possession of arms.
22. There can be no doubt that activities involving illegal
possession or use of arms, particularly when connected
with activities prejudicial to the security of the State,

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constitute material which a Detaining Authority is entitled
to consider. Preventive detention may be founded upon
material which would also constitute the basis of criminal
prosecution. However, the mere existence of charge-sheets
cannot, by itself, substitute the statutory requirement of
subjective satisfaction. The Detaining Authority must
demonstrate a rational connection between the material
relied upon and the necessity to prevent the petitioner
from acting prejudicially in future.
23. The Court is conscious that it does not sit as an
appellate authority over the subjective satisfaction of the
Detaining Authority. The Court cannot substitute its own
opinion for that of the detaining authority merely because
another view is possible. At the same time, judicial review
is available where the satisfaction is based on irrelevant
material, non-application of mind, or the constitutional
safeguards have not been complied with. The Supreme
Court has repeatedly recognised that the procedural
safeguards surrounding preventive detention constitute
the principal protection available to a person against
deprivation of personal liberty.
24. There is considerable force in the general proposition.
In Additional Secretary to the Government of India v.
Alka Subhash Gadia reported as 1992 Supp (1) SCC
496 , the Supreme Court held that interference with a
preventive detention order at the pre-execution stage is

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permissible only in exceptional circumstances. The Court
inter alia
identified, , cases where the order is passed for a
wrong purpose, is based on vague, extraneous or
irrelevant grounds, or where the authority lacked
jurisdiction.
25. The power of preventive detention, though
undoubtedly available to the State for protecting the
security of the State, cannot be exercised mechanically or
on the basis of stale, incomplete or selectively presented
material. Personal liberty under Article 21 of the Indian
Constitution occupies a position of great constitutional
importance, and the safeguards incorporated in Article 22
and the statute must receive strict compliance.
26. In the circumstances of the present case, and
particularly having regard to the considerable delay in
execution of the detention order; the absence of
satisfactory material demonstrating effective steps for
execution during the relevant period; the subsistence of
the interim judicial order and the failure, if established
from the record, of the respondents to seek its vacation
with due expedition; and the apparent non-consideration
of the petitioner's acquittal in FIR No. 384/2007 and the
orders of bail in the other criminal cases, this Court is of
the considered opinion that the subjective satisfaction
recorded by the Detaining Authority cannot be sustained
in law.

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27. Having regard to the above discussion, the instant
petition is allowed . The impugned detention Order No.
39/DMA/PSA/DET/2022 dated 25.06.2022 passed
under Section 8 of the Jammu and Kashmir Public Safety
Act, 1978, is consequently quashed .
28. Disposed of, accordingly, alongwith connected
application(s).

(M. A. CHOWDHARY)
JUDGE

Srinagar
14.09.2026
Muzammil. Q

Whether the order is reportable: Yes / No