SUBZAR 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.17/2026

Reserved on: 03.09.2026
Pronounced on: 15.09.2026
Uploaded on: 15.09.2026
Operative part or full judgment:Full

Subzar Ahmad Ganie
S/O Ghulam Nabi Ganie
R/O Cheki Choland,
Tehsil Hermain, District Shopian.


…Petitioner(s)

Through: Adv. Bhat Shafi.

Vs.

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

2. District Magistrate,
Shopian.

3. Sr. Superintendent of Police,
Shopian.

4. Superintendent of Central Jail,
Jammu.


…Respondent(s)

Through: Dy.AG Bikramdeep Singh with
AC Nadiya Abdullah.

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

JUDGMENT


1. The petitioner, through the medium of the instant petition,
has questioned the legality and validity of the preventive
detention Order No. 17/DMS/PSA/2025 dated
24.12.2025 passed by respondent No.2-District

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Magistrate, Shopian, whereby the petitioner/detenue has
been detained under the provisions of the J&K Public
Safety Act, 1978 with a view to prevent him from acting
.
in any manner prejudicial to the ‘security of the State’

2. The case set up by the petitioner is that the impugned
order of detention is constitutionally unsustainable; that
the grounds of detention being vague, non-specific and
incapable of affording the detenue an opportunity of
making an effective representation; that the material relied
upon by the Detaining Authority was not furnished to the
detenue in its entirety; that the consideration of the
representation was also not in accordance with the
constitutional mandate contained in Article 22(5) of the
Constitution of India.

3. Per contra, the respondents opposed the petition, pleading
in their counter affidavit, that the Detaining Authority after
considering the material placed before it, arrived at the
requisite subjective satisfaction that preventive detention
of the detenue was necessary; that the detenue had been
bound down on three different occasions; that the material
placed before the Detaining Authority disclosed his
association with elements inimical to the security of the
State; that the representation submitted on behalf of the
detenue was duly considered and rejected, therefore, no
prejudice can be said to have been caused to him.

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4. Heard learned counsel for the parties, perused the
detention record and considered the matter.

5. There can be no dispute with the settled proposition that
preventive detention is an exceptional measure and
constitutes a serious inroad into the personal liberty of an
individual guaranteed under Article 21 of the Indian
Constitution. The power of preventive detention, though
constitutionally permissible, is hedged in, by the
safeguards contained in Article 22(5) of the Constitution.

6. The Supreme Court in Khudiram Das v. State of West
Bengal reported as (1975) 2 SCC 81 emphasised that the
constitutional requirement is that the basic facts and
particulars which influenced the mind of the Detaining
Authority in arriving at the requisite satisfaction must be
communicated to the detenue so as to afford him an
effective opportunity of making a representation. The
Supreme Court also made it clear that the courts are
entitled to examine whether the statutory and
constitutional requirements have been complied with.

7. It is equally well settled that although the sufficiency or
adequacy of the material cannot ordinarily be examined by
the Court as an appellate authority over the subjective
satisfaction of the Detaining Authority, the Court can
certainly examine whether the satisfaction is based on
relevant material, whether the grounds are sufficiently
precise, whether there is application of mind, and whether

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the constitutional safeguards have been scrupulously
observed .

8. Coming to the facts of the present case, one of the
principal grounds relied upon by the respondents is the
alleged association of the detenue with persons/elements
described as terrorists/OGWs . However, on a careful
examination of the grounds of detention, what is
conspicuously absent is any clear and specific description
of the particular overt acts or activities attributed to the
detenue which, according to the Detaining Authority,
rendered his preventive detention necessary.

9. A mere description of a person as an “OGW” or an
assertion that he is associated with terrorists, cannot by
itself constitute sufficient communication of the grounds of
detention. The Detaining Authority was required to spell
out the material particulars which led it to arrive at the
conclusion that the detenue was likely to act in a manner
prejudicial to the security of the State.

10. Preventive detention cannot rest upon conclusions
detached from the factual material which constitutes the
foundation of those conclusions. The detenue is not
required merely to know the conclusion reached by the
Detaining Authority, he must know the basic facts and
particulars forming the foundation of such conclusion, so
that he can effectively controvert the same.

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11. In Khudiram Das (supra) , the Supreme Court held
that the constitutional requirement under Article 22(5)
insists upon communication of the basic facts and
particulars which influenced the Detaining Authority in
arriving at the requisite satisfaction.

12. In the present case, the reference to the detenue as
being associated with terrorist elements, without
furnishing adequate particulars of his alleged activities,
assumes significance because the very object of the
detention order is stated to be prevention of acts
prejudicial to the security of the State . The more serious
the consequence of the detention, the greater is the
necessity for the grounds to contain sufficient factual
particulars enabling the detenue to meet the allegations.

13. A vague assertion that the detenue was an OGW,
without specifying what he did, when he did it, with whom,
in what manner, and how such conduct had a nexus with
the anticipated prejudicial activity , cannot be treated as an
adequate communication of the grounds.

14. The respondents have also relied upon the fact that
the detenue was allegedly bound down on three occasions
on different dates . However, the mere existence of such
proceedings cannot, in the absence of particulars and a
clear nexus with the prejudicial activity contemplated in
the detention order, automatically justify preventive
detention.

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15. The Detaining Authority was required to demonstrate
how those previous instances constituted relevant material
for arriving at the subjective satisfaction that there was a
real and imminent necessity to detain the petitioner with a
view to prevent him from acting prejudicially to the
security of the State.

16. Preventive detention is not intended to be punitive in
character. It is a precautionary measure based upon a
reasonable prognosis of future conduct. Therefore, the
material relied upon must have a rational and proximate
connection with the necessity for detention. The detention
order cannot be sustained merely by reproducing
antecedents or previous proceedings without
demonstrating their live nexus with the apprehended
prejudicial activity.

17. Another important aspect which arises for
consideration is the grievance regarding supply of the
material relied upon by the Detaining Authority. Article
22(5) mandates not only communication of the grounds of
detention but also affords the detenue the earliest
opportunity of making a representation against the order
of detention. The two requirements are intrinsically
connected.

18. The Supreme Court has repeatedly held that
documents relied upon by the Detaining Authority must be
supplied to the detenue so that he can effectively challenge

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the basis of his detention. In Jaseela Shaji v. Union of
India reported as 2024 INSC 702 , the Supreme Court
reiterated that while every document merely referred to in
the grounds need not necessarily be supplied, every
document relied upon by the Detaining Authority which
affects the detenue's right to make an effective
representation must be furnished to him . Failure to
furnish such relied-upon material violates Article 22(5).
The Supreme Court in Icchu Devi Choraria v. Union of
India reported as (1980) 4 SCC 531 , has explained that it
is difficult for a detenue to make an effective
representation unless copies of the documents, statements
and other material relied upon in the grounds of detention
are furnished to him. The principle has subsequently been
consistently reiterated.

19. The respondents contend that the representation of
the detenue was considered and rejected and that there
was no delay attributable to the authorities. The record
shows that the representation was filed on 07.01.2026
and was decided on 24.02.2026 . It is true that there is no
statutorily prescribed period within which every
representation must necessarily be disposed of.
Nevertheless, the constitutional obligation under Article
22(5) is to consider the representation, as expeditiously as
possible and with utmost promptitude . The Supreme
Court in Jaseela Shaji (supra) has recently reiterated that

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the obligation to afford the earliest opportunity of making a
representation and the corresponding obligation to
consider it expeditiously are constitutional imperatives.

20. The safeguards contained in Article 22(5) are not
matters of mere formality. They constitute substantive
constitutional protection against arbitrary deprivation of
personal liberty. The Supreme Court has repeatedly
emphasised that the right of the detenue to make an
effective representation is a fundamental right and that
failure to furnish relied-upon material, where such failure
prejudices the detenue's ability to represent, vitiates the
detention.

21. The Court cannot substitute its own satisfaction for
that of the Detaining Authority. However, it is equally true
that the Court cannot permit a detention order to survive
when the constitutional safeguards designed to protect
personal liberty have not been complied with.

22. On an overall consideration of the detention record,
this Court is of the considered view that the impugned
detention order cannot be sustained for the following
cumulative reasons:

(i) the grounds of detention, insofar as they attribute
association with terrorist/OGW elements to the
detenue, do not furnish adequate and specific
particulars of the activities allegedly undertaken by
him;

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(ii) the material relating to the detenue having
allegedly been bound down on three occasions has
not been shown to have been connected through a
clear and live nexus with the necessity of
preventive detention;

(iii) the material relied upon by the Detaining Authority
was not communicated to the detenue in its
entirety; and

(iv) in the absence of full and effective communication
of the relied-upon material, the detenue was
deprived of the meaningful and effective
opportunity guaranteed to him under Article 22(5)
of the Constitution.

23.
This Court is very much conscious that preventive
detention is an area in which the Court must exercise
restraint while examining the subjective satisfaction of the
Detaining Authority, but judicial restraint does not mean
abdication of the constitutional duty to protect personal
liberty. Where the constitutional safeguards have been
breached, the Court is bound to intervene.

24. For the foregoing reasons, the petition is allowed .
The impugned detention Order No. 17/DMS/PSA/2025
dated 24.12.2025 passed by respondent No.2-District
Magistrate, Shopian against the detenue/petitioner herein,
is hereby quashed . The respondents are directed to release

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the detenue forthwith, if his custody is not required in
connection with any other case(s).

25. Scanned detention record, as produced by learned
counsel for the respondents, is directed to be sent back
through him.

26. The petition stands disposed of in the above terms.


(M. A. CHOWDHARY)
JUDGE

Srinagar
15.09.2026
Muzammil. Q


Whether the order is reportable: Yes / No