TARIQ AHMAD DAR vs UNION TERRITORY OF J AND K AND OTHERS (HOME / POLICE)

Serial No. 16

Regular Cause List

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR

LPA No. 254/2026 in HCP No. 21/2026

Tariq Ahmad Dar
S/o. Ghulam Hassan Dar
R/o. Raiwattan Asnoor, Mangam
Tehsil D.H. Pora, District Kulgam

(Through his wife namely Nahida Akhter)
…Appellant
Through: Mr. Parvaiz Amin Wani, Advocate
Vs.
1. Union Territory of J and K Th.
Commissioner Secretary, Home,
Civil Secretariat, Srinagar
2. District Magistrate, Kulgam
3. Senior Superintendent of Police, Kulgam
4. Station House Officer, Police Station, Manzgam Kulgam
5. Superintendent/Incharge District Jail Udhampur

...Respondents
Through: Mr. Mohsin S. Qadri, Sr. AAG with
Ms. Maha Majeed, Assisting Counsel
CORAM:
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
21.10.2026
Per Mohd Yousuf Wani-J)
( -
1. Impugned in this Letters Patent Appeal is the judgment dated 25-
09-2026, passed by a learned Single Bench of this Court
[hereinafter referred to as the 'Writ Court' for short] in Habeas
Corpus Petition No. 21 of 2026, titled "Tariq Ahmad Dar vs Union
Territory of Jammu and Kashmir and others" , whereby the learned
writ court dismissed the same while upholding the detention order
bearing No. 07/DMK/PSA/2025, dated 13-12-2025, passed by the
respondent No. 2-- District Magistrate, Kulgam, [hereinafter
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referred to as the 'Detaining Authority' for short], impugned in the
said petition.
2. The appellant came to be detained by the Detaining Authority in
exercise of its powers under Section 8(1)(a)(i) of the Jammu and
Kashmir Public Safety Act, 1978, (hereinafter referred to as the
‘PSA’ for short) with a view to prevent him from acting in any
manner prejudicial to the maintenance of public order.
3. Aggrieved by the detention order bearing No. 07/DMK/PSA/2025,
dated 13-12-2025 of the Detaining Authority, the appellant/detenue
assailed the same before this Court through HCP No. 21/2026,
which, however, came to be dismissed by the Ld. Writ Court vide
the impugned judgment.
4. The impugned judgment has been assailed in this Intra-Court
Appeal on the grounds, inter alia, that the Ld. Writ Court has not
appreciated the settled distinction between "law and order" and
"public order" . That the appellant-detenue came to be detained
vide impugned detention order No. 07/DMK/PSA/2025, dated 13-
12-2025 passed by the Detaining Authority, in exercise of its
powers vested under Section 8(1)(a)(i) of PSA on the ground of his
alleged involvement in a series of FIRs registered against him for
livestock/cattle theft which does not amount to public disorder as
alleged. That the alleged activities of the appellant-detenue can, at
the most, be considered as the ordinary law and order breaches to
be dealt with under normal criminal law.
That the criminal cases against the appellant-detenue and
forming the basis of the impugned detention order were already
being dealt with under general criminal laws, as the chargesheets
arising out of the said case FIRs had already been filed before the
competent courts, with the release of the appellant-detenue on bail
in the said cases. That the general criminal law is sufficient to deal
with the cases against the appellant-detenue and there was no
justification for his detention under the preventive detention law,
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under misuse of its powers by the Detaining Authority. That the
appellant-detenue was not supplied with the entire detention record,
including the bail orders, and the grounds of detention were also not
read over and explained to him in his vernacular language.
That the Detaining Authority did not justify in the impugned
detention order that the general criminal law was insufficient to
tackle with the appellant-detenue. That the learned writ court, while
passing the impugned judgment, dismissed the basic petition on the
main ground that the repeated involvement of the appellant-detenue
in the house trespass and theft of livestock incidents and the
consequences thereof was sufficient for the detaining authority to
arrive at a satisfaction concerning breach of public order, which
observation of the Ld. Writ Court is contrary to the settled legal
position. That the learned writ court further observed in the
impugned judgment that non-supply of the copies of the bail orders
was not fatal because the substance thereof stood reflected in the
grounds of detention; and besides such requirement does not
constitute the independent foundational material, which is not
justified under law.
That the learned writ court, through the impugned judgment,
inter alia observed that the repeated commission of the theft cases
subsequent to the release of the appellant/detenue is supposed to
have created a fear psychosis among the local population with
regard to the safety of their property, which again does not meet the
interpretation of the law concerning public order . That the
preventive detention cannot be invoked on the mere ground that the
accused in criminal cases against him has been granted bail. That
the respondents did not take any steps to assail the bail orders
granted by the competent trial courts in favor of the appellant. That
it is not the case of the respondents that bail conditions were
violated by the appellant/detenue, that cancellation of bail orders
was sought, which was not, however, allowed, that the prosecution
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had become ineffective and the general criminal law proved
insufficient in his case. That the invocation of PSA was, therefore,
disproportionate and legally unsustainable. That the
appellant/detenue, despite being a labourer and not conversant with
the English language, was furnished the insufficient detention
record in English language, which amounts to the infraction of the
provisions of Article 22(5) of the Constitution of India, as also of
Section 13 of the PSA. That the learned writ court did not
appreciate the contention of the appellant/detenue, as agitated by
him in the basic petition, to the effect that after receiving the
detention order, he, without wasting any time, made representations
against his detention to the learned Advisory Board, Government,
as well as the detaining authority, demonstrating that his detention
under PSA is highly violative of his fundamental rights guaranteed
under Articles 21 and 22 of the Constitution of India which were
not considered. That the Detaining Authority issued the impugned
detention order dated 13/12/2025 solely on the basis of dossier
submitted by the respondent No. 3-Senior Superintendent of Police,
Kulgam, without any independent application of mind, which was
sine qua non for passing of such detention order. That the
procedural safeguards as envisaged under Article 22(5), as well as
Section 13 of the PSA, were observed in breach by the detaining
authority. That the allegations basing the grounds of detention do
not satisfy any of the requirements under Section 8 of the PSA.
That the appellant/detenue, despite being absolutely illiterate, was
furnished with some of the copies of the detention record in English
language, without also furnishing to him the translated copies of the
same in his local vernacular language and also without making him
to understand the contents of the same in his own language.
5. We have heard the learned counsel for the parties in respect of the
matter.
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6. The learned counsel for the appellant/detenue, while reiterating his
stand already taken in this Letters Patent Appeal, submitted that the
impugned judgment of the learned writ court suffers from illegality,
as the well-interpreted and recognized distinction between the
"normal law and order infraction" and the "public disorder"
has not been appreciated. He contended that the preventive
detention of the appellant-detenu has been ordered by the Detaining
Authority on account of his involvement in a series of criminal
cases registered with different police stations in District Kulgam,
Anantnag and Shopian. He contended that appellant stands bailed
out in all the case FIR numbers, and none of the bail orders came to
be assailed by the State. He further contended that final
reports/chargesheets arising out of the aforesaid criminal cases have
already been filed before the competent courts, which are pending
disposal and in which, as per the principle of criminal jurisprudence
of our country, he is presumed to be innocent till proved guilty at
the trial. He further contended that all the case FIR’s numbering 11
relate almost to the similar offences punishable under Section
331(4), 305 BNS. That the aforesaid offences constitute normal
law and order infraction , as opposed to the social disorder as
defined under Section 8(3) of PSA. He contended that any act or
omission to be construed as prejudicial to the maintenance of
public order should have an effect or tendency of promoting,
propagating or attempting to create feelings of enmity, hatred or
disharmony on the grounds of religion, race, caste, community or
region.
7. The learned counsel further contended that the Detaining Authority
has not mentioned in the grounds of detention as to how the normal
law and order machinery was insufficient to tackle with the
appellant/detenu. He further contended that the Detaining
Authority, while ordering the preventive detention of the appellant,
observed the mandatory procedural requirements in terms of
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provisions of Article 22(5) of the Constitution of India, as also of
Section 13 of the PSA, in breach by failing to furnish him with the
complete set of detention record and to inform him of the grounds
of his detention in the language understandable by him. He further
contended that the appellant was prevented from making an
effective representation in time, for want of a complete set of
detention records. It was further contended by the learned counsel
that representation was filed on behalf of the appellant, which was
not considered, and the result of the same was not conveyed to him.
The learned counsel submitted that the learned Writ Court did not
consider the aforementioned facto-legal issues touching the merits
of the case, and as such, the impugned judgment deserves to be set
aside.
8. The learned counsel in support of his contentions placed reliance on
the judgments cited as:

i. Ameena Begum vs State of Telangana & Ors 2023 (9) SCC
587.
ii. Ram Manohar Lohia vs. State of Bihar and Another 1966
AIR (SC) 740.
iii. Dhanyam vs. State of Kerala and Ors 2025 SCC Online SC
1315

9. Per Contra , the learned counsel for the respondents/UT submitted
that the judgment of the learned Writ Court impugned in this
Letters Patent Appeal does not admit of any interference for having
been passed in accordance with law. He contended that the learned
Writ Court has observed in its judgment that the material placed on
record shows that the Detaining Authority has not proceeded
merely on the basis of one isolated criminal case, but the grounds of
detention refer to eleven FIRs involving similar allegations
concerning theft of livestock and indicate repeated involvement of
the appellant in such activities. The learned senior AAG further
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contended that the learned Writ Court has also observed in the
impugned judgment that mere pendency of criminal proceedings
against a person does not by itself preclude recourse to preventive
detention.
He contended that preventive detention operates in a different
field, as the object of the same is to prevent a person from indulging
in any manner prejudicial to the social order or security of the
State , but not to punish him. He further contended that this Court,
while exercising its limited jurisdiction in a Habeas Corpus Petition,
cannot substitute its own assessment of the material for the
satisfaction recorded by the competent authority. He contended that
the Detaining Authority felt constrained to invoke its powers in
terms of Section 8 of PSA to prevent the appellant/detenu, who did
not hesitate to indulge in the repeated offences of house trespass
and theft despite being bailed out, subject to some terms and
conditions, by the competent criminal courts. He further contended
that the learned Detaining Authority was conscious of the bail
orders having been passed in criminal cases in favor of the
appellant/detenu, who violated the terms and conditions of the bail
orders by repetition of the crime.
10. The Ld. Sr. AAG further contended that the grounds of detention
basing the impugned detention order portray the application of
mind on the part of the Detaining Authority. He contended that the
grounds of detention inter alia read that, “Appellant is a labourer by
profession but he adopted theft and burglary as a habitual means of
earning livelihood. That his activities were creating an atmosphere
of serious tension among the local communities and are hugely
prejudicial to the maintenance of law and order. That he is a
habitual and a notorious cattle lifter, involved in repeated incidents
of theft and burglary across the districts of Kulgam, Anantnag and
Shopian. That he along with his associates was engaged in stealing
cattle and sheep from the sheds of innocent villagers thereby
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causing panic, fear and insecurity among the public at large
particularly in the districts of Kulgam and Shopian. That his
activities have not remained confined to a single area but extended
across multiple districts which clearly demonstrates his criminal
bent of mind and organized manner of committing crime. That the
magnitude, frequency and geographical spread of his criminal acts
established that his conduct has not merely breached law and order
but seriously affects the public order” .
He further contended that the ld. Writ court has rightly
observed in the impugned judgment that the distinction between a
mere disturbance of law-and-order incident and an activity
prejudicial to the public order cannot be determined only by the
nomenclature of offences but the nature, frequency, continuity and
the impact of the activities upon the community have also to be
considered. He further submitted that where the repeated activities
of a person affect the even tempo of public life, such activities
transcend the ordinary law and order domain. He further contended
that the mandatory procedural requirements in terms of Article
22(5) of the Constitution of India and Section 13 of the PSA were
fully complied with by the Detaining Authority by furnishing the
appellant/detenue with all the copies of documents referred to in the
grounds of detention, upon making him to understand the contents
of the same in his local vernacular language with further
information to him that he has a right to make a representation to
the Detaining Authority or to the Government as the said facts are
discernible from the perusal of the detention record.
11. We have perused the record of the instant Intra-Court Appeal and
have also accorded consideration to the rival contentions advanced
on both the sides.
12. In the facts and circumstances of the case, we are of the opinion
that although the criminal acts of the appellant/detenue which
have lead to the registration of a series of case FIRs with their
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subsequent culmination into final reports/chargesheets in terms
of the provisions of Section 193 BNSS, no doubt amount to
infraction of law and order by falling within the definitions of
the offences punishable under Sections 331(4), 305 BNS, yet the
same have not the implication of disturbing the “social order”
13. It is apt to reproduce the provisions of Section 8(3)(b) of the PSA
which defines the social order for the purposes of Section 8(1)(a)(i)
of the said Act.
― 8. Detention of certain persons
(3) For the purposes of sub-section (1)
(b) ―acting in any manner prejudicial to the maintenance of
public order‖ means –
(i) promoting, propagating or attempting to create, feelings of
enmity or hatred or disharmony on ground of religion, race,
caste, community, or region;
(ii) making preparations for using, or attempting to use, or
using, or instigating, inciting, provoking or otherwise, abetting
the use of force where such preparation, using, attempting,
instigating, inciting, provoking or abetting, disturbs or is likely to
disturb public order;
(iii) attempting to commit, or committing, or instigating,
inciting, provoking or otherwise abetting the commission of,
mischief within the meaning of section 425 of the Ranbir Penal
Code where the commission of such mischief disturbs, or is
likely to disturb public order;
(iv) attempting to commit, or committing, or instigating,
inciting, provoking or otherwise abetting the commission of an
offence punishable with death or imprisonment for life or
imprisonment of a term extending to seven years or more, where
the commission of such offence disturbs, or is likely to disturb
public order;

14. There is a market difference between disturbance relatable to “law
and order” and disturbances caused to “public order” . It is well
settled that breach of law in all cases does not lead to public
disorder.
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15. In Ram Manohar Lohia Vs. State of Bihar (1966) 1 SCR 709 , it
was held by the Hon’ble Apex Court at para 54 of the judgment as
under: -
(v) ―54. * Public order if disturbed, must lead to public
disorder. Every breach of the peace does not lead to public
disorder. When two drunkards quarrel and fight there is disorder
but not public disorder. They can be dealt with under the powers
to maintain law and order but cannot be detained on the ground
that they were disturbing public order. Suppose that the two
fighters were of rival communities and one of them tried to raise
communal passions. The problem is still one of law and order but
it raises the apprehension of public disorder. Other examples can
be imagined. The contravention of law always affects order but
before it can be said to affect public order, it must affect the
community or the public at large. A mere disturbance of law and
order leading to disorder is thus not necessarily sufficient for
action under the Defence of India Act but disturbances which
subvert the public order are.”

16. In Arun Ghosh Vs. State of West Bengal (1970) 1 SCC 98, the
Hon’ble Supreme Court observed that it is not every case of a
general disturbance to public tranquility which can be termed as
public disorder and the test to be applied in such cases is whether
the alleged act leads to the disturbance of the current of life of the
community so as to amount to disturbance of the public order. That
if the alleged act affects some individual or individuals leaving
tranquility of the society undisturbed, the act cannot be termed as
amounting to public disorder.
In that case the petitioner/detenu was detained by an order of
a district magistrate since he had been indulging in teasing,
harassing and molesting young girls and assaults on individuals of a
locality. While holding that the conduct of the petitioner/detenu
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could be reprehensible, it was further held that it does not add up to
the situation where it may be said that the community at large was
being disturbed or in other words there was a breach of public order
or likelihood of a breach of public order‖.
The observations made by the Hon’ble Apex Court in the said
case at para 3 are reproduced as under: -

3 .* Public order was said to embrace more of the community than
law and order. Public order is the even tempo of the life of the
community taking the country as a whole or even a specified locality.
Disturbance of public order is to be distinguished from acts directed
against individuals which do not disturb the society to the extent of
causing a general disturbance of public tranquility. It is the degree of
disturbance and its effect upon the life of the community in a locality
which determines whether the disturbance amounts only to a breach of
law and order. … It is always a question of degree of the harm and its
effect upon the community.…This question has to be faced in every
case on facts. There is no formula by which one case can be
distinguished from another. ‖


17. In Kuso Sah Vs. The State of Bihar (1974) 1 SCC 195, the
Hon’ble Apex Court held at paras 4 & 6 of the judgment as under: -
―4. * The two concepts have well defined contours, it being well
established that stray and unorganized crimes of theft and assault are
not matters of public order since they do not tend to affect the even
flow of public life. Infractions of law are bound in some measure to
lead to disorder but every infraction of law does not necessarily result
in public disorder. *

6. * The power to detain a person without the safeguard of a court
trial is too drastic to permit a lenient construction and therefore Courts
must be astute to ensure that the detaining authority does not
transgress the limitations subject to which alone the power can be
exercised. *‖

18. In Rekha Vs. State of Tamil Nadu, (2011) 5 SCC 244 , the
observations made by the Hon’ble Apex Court at its paras 21 & 30
deserve a needful mention: -
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―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?

―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. ‖

19. 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 as
under: -
―32 I t 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. ‖

20. 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.‖
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21. This Court is also fortified in its opinion with the authoritative
judgment of the Hon’ble Apex Court cited as “Ameena Begum Vs.
The State of Telangana & Ors 2023 (9) SCC 587 decided on
04.09.2023” also referred to by the learned counsel for the
petitioner in which it has been held at para 40 of the judgment as
under: -

―40. On an overall consideration of the circumstances, it does
appear to us that the existing legal framework for maintaining
law and order is insufficient to address like offences under
consideration, which the Commissioner anticipates could
be repeated by the Detenu if not detained. We are also
constrained to observe that preventive detention laws—an
exceptional measure reserved for tackling emergent situations—
ought not to have been invoked in this case as a tool for
enforcement of ―law and order‖. Thus, for the reason that, the
Commissioner despite being aware of the earlier judgment and
order of the High Court dated 16th August, 2021 passed the
Detention Order ostensibly to maintain ―public order‖ without
once more appreciating the difference between maintenance of
―law and order‖ and maintenance of ―public order‖. The order
of detention is, thus, indefensible. ‖

22. In the above referred case of Ameena Begum, the allegation against
the detenu was that he was ― habitually committing the offences
including outraging the modesty of women, cheating, extortion,
obstructing the public servants from discharging their
legitimate duties, robbery and criminal intimidation along with
his associates in an organized manner in the limits of … and he
is a ‘Goonda’ as defined in clause (g) of Section 2‖ of the relevant
statute invoked by the Commissioner. The Commissioner, with a
view to prevent the Detenu from acting in a manner prejudicial to
maintenance of public order, recorded not only his satisfaction for
invoking the provisions of the Act but also recorded a satisfaction
that ―the ordinary law under which he was booked is not sufficient
to deal with the illegal activities of such an offender who has no
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regard for the society. Hence, unless he is detained under the
detention laws, his unlawful activities cannot be curbed‖.
23. The Hon’ble Apex Court in a landmark judgment cited as
“Sushanta Goswami, In Re ([1968} Supreme Court of India)”
addressed the critical issue of preventive detention under Article 32
of the Indian Constitution. The said case involved a collective
petition by Sushanta Goswami and 46 others challenging their
detention under Section 3 (2) of the Prevention of Detention Act,
1950. The central question revolved around was whether the
grounds for detention genuinely pertained to maintaining public
order or was merely related to general law and order? The Hon’ble
Supreme Court meticulously examined each petitioner’s grounds
for detention, categorizing them based on their relevance to ‘public
order’. The Court invalidated detention orders where the activities
alleged did not directly threaten public order but were instead
typical criminal offences such as theft, assault and property
damage. Conversely, detention was upheld only where the
activities posed a significant threat to the community’s overall
peace and satiability.
A pivotal aspect of the judgment was the Court’s insistence
that detention under the guise of preventing actions prejudicial to
public order must be substantiated by concrete evidence showing a
direct impact on societal harmony. The Court emphasized the
necessity of a clear and direct correlation between the detainee’s
actions and the maintenance of public order
The Court referenced two significant cases to support its
stance:
Dwarka Das Bhatia Vs. State of Jammu & Kashmir (1956
SCR 945): This case underscored the importance of relevance in
grounds for preventive detention, rejecting arbitrary detentions
based on vague or unrelated reasons.
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Pushkar Mukherjee Vs. State of West Bengal: A more
recent decision at the time, this case further clarified the judiciary’s
view on maintaining the balance between State security and
individual liberties, reinforcing stringent checks on detention
orders.
The Court ‘s legal reasoning hinged on interpreting ―public
order‖ with precision. It delineated between general disturbances of
law and order and actions that genuinely threaten societal peace.
The judgment clarified that not every act disrupting law and order
qualifies as being
―prejudicial to public order. For instance, petty thefts or
assaults without broader societal implications do not meet the
threshold for preventive detention under the Act.
Furthermore, the court critiqued the authorities ‘tendency to
conflate individual criminal acts with threats to public order,
thereby undermining the very essence of preventive detention. By
setting aside detention orders lacking direct relevance, the court
reinforced the principle that such extreme measures must be
reserved for genuine threats to societal harmony. ‖
24. So. the material brought before the detaining authority by the
District Superintenmdent of Police, Kulgam was not of such a
nature which could have been understood and apprehended as
prejudicial to the “public order”. The alleged actions of the
appellant/detenue no doubt amount to infraction of laws for which
legal mechanism in place was already pressed into service.
The invocation of the provisions of the PSA to detain the appellant
rather than to pursue the prosecution against him appears to be an
unjustified exercise and abuse of process of law. Under these
circumstances the non-application of mind on the part of the
detaining authority becomes explicit. It is settled position that a
detention order suffering from non-application of mind by the
detaining authority cannot sustain under law.
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25. The Court, however, at the same time is also of the firm opinion
that preventive detention cannot under all circumstances be
considered as violative of the fundamental right to personal liberty
of an individual. The personal liberty is to be balanced against the
collective liberty of the citizens who have an equal fundamental
right to live peacefully in the society. Admittedly the object of the
preventive detention is not punitive but preventive meant to be
invoked as a quick measure in good faith.
26. In the opinion of the court, the ordinary criminal law and order
machinery was sufficient to deal with the appellant/detenue. The
character of the accused and his antecedents is of predominant
consideration while considering the bail application on his behalf in
a criminal case. It is expected that criminal courts before which the
cases against the appellant/detenue are pending trial will consider
such governing principles while considering any application for bail
or cancellation of bail.
27. The grounds of detention show that the appellant/detenue has
committed as many as eleven (11) consecutive incidents of lurking
house trespass/house breaking after sunset and before sunrise for
the purpose of cattle/sheep stealing mostly during the year 2025 in
the districts of Kulgam, Anantnag and Shopian. The
appellant/detenue is reported to have been bailed out in almost all
the said case FIRs and the final reports/ chargesheets arising out of
the same are also reported to be pending trial in the competent
courts of law. It is obvious that all the bail orders passed in favour
of the appellant/detenue should be subject to some terms and
conditions inter alia including a condition that he shall not repeat
the commission of the crime. It appears that the repetition of crime
by the appellant/detenue after being enlarged in earlier case FIRs
has either not been brought to the knowledge of criminal courts
seized of subsequent bail petitions or if brought to the knowledge of
the court, underestimated.
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28. However, the contentions of the learned counsel for the
appellant/detenue to the effect that the copy of the detention record
in full was not provided to the detenue and he was not made to
understand the grounds of detention in his local vernacular
language do not appear to be borne out from the perusal of the
detention record.
29. We have no reason to disbelieve that the repeated incidents of night
house trespass and cattle stealing by the appellant/detenue would
have sent a shocking message to the concerned habitations. The
cattle/sheep are generally being reared by the common villagers
who depend for their livelihood on such cattle and, as such, the
worries of victims of the said incidents cannot be lost sight of. The
prosecution wing of the Police Department entrusted with
prosecution of the criminal cases in the Courts of Law are expected
to shoulder their responsibility of bringing the repeated criminal
activities of an accused before the Court during the hearing of bail
matters.
30. The preventive detentions need to be passed with great care and
caution keeping in mind that a citizens most valuable and inherent
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
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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.
31. For the foregoing discussion, the impugned judgment dated
25.09.2026 of the ld. Writ Court appears to be suffering from
illegality and accordingly admits of interference.
32. The impugned judgment is accordingly set-aside. Consequently, the
detention order bearing No. 07/DMK/PSA/2025, dated 13-12-2025,
passed by the respondent No. 2-District Magistrate, Kulgam also
impugned in this LPA is quashed with the direction to the
respondents to release the appellant/detenue forthwith form his
detention in this case.
33. Disposed of.

(MOHD YOUSUF WANI) (DR. PUSHPENDRA SINGH BHATI)
JUDGE CHIEF JUSTICE

SRINAGAR
21.10.2026
Shahid Manzoor

Whether the order is speaking? Yes
Whether approved for reporting? Yes
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