AIJAZ AHMAD RATHER vs UNION TERRITORY OF J AND K AND ORS. (HOME)

IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 12.10.2026
Pronounced on: 30.10.2026
Uploaded on: 30.10.2026
Whether the operative part
or full judgment is
pronounced: Full
HCP No.197/2025
AIJAZ AHMAD RATHER
...PETITIONER(S)/APPELLANT(S)
Through: - Mr. M. Amin Khan, Advocate.
Vs.
UT OF J&K & ORS. …RESPONDENT(S)
Through: - Mr. M. Younis Hafeez, Assisting Counsel.
CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1) Through the medium of this petition, the petitioner has
assailed the legality of the order of detention bearing No.
32/DMP/PSA/25 dated 07.05.2025 issued by respondent
No.2-District Magistrate, Pulwama, whereby the petitioner
has been placed under preventive detention in order to
prevent him from acting in a manner prejudicial to the
security of the State.
2) The order of detention (supra) has been impugned on
the following grounds:
(a) That the detenue was not provided all the
relevant material and the documents relied
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upon by the detaining authority and the
translated version thereof, thereby denying him
a real and meaningful opportunity to make an
effective representation against his detention;

(b) That the impugned order has been passed on the
basis of stale and irrelevant grounds which are
lacking proximate and live link with the
detenue’s current conduct and the impugned
order has been passed in a mechanical manner
without application of mind;

(c) That the grounds of detention are vague,
indefinite and ambiguous;
(d) That there is an unexplained and unreasonable
delay between the alleged activities and the
passing of the detention order, which breaks the
live and proximate link required between the
incident and the order of detention.
3) The respondents have filed the counter affidavit stating
therein that the activities of the petitioner have been found
to be prejudicial to the security of the State and he has been
taken into preventive custody as per the requirement of law.
The order of detention was executed on 08.05.2025 by SI
Mohd. Shafi and detenue was handed over to the Assistant
Superintendent District Jail Kathua. The contents of
grounds of detention and detention warrant/order were read
over to the detenue. The detenue was informed about his
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right to submit representation against his detention. The
representation filed by the detenue was considered and
rejected by the detaining authority on 20.05.2025 and the
result of such consideration was conveyed to the detenue.
Furthermore, another representation was filed on behalf of
the detenue before the Home Department, which has also
been rejected on 06.06.2025. It has been stated that the
grounds urged by the petitioner in the petition are legally
misconceived, untenable and without any merit. It has been
further averred that the grounds of detention are precise,
proximate, relevant and there is no vagueness or staleness
in the same. It is stated that the impugned order of detention
has been passed by the competent authority strictly in
accordance with the provisions of law and whole of the
material forming basis of the grounds of detention has been
provided to the petitioner.
4) In order to lend support to the contentions raised in the
counter affidavit, the respondents have produced the
detention record.
5) Learned counsel for the petitioner has vehemently
argued that the petitioner was not involved in any offence
and despite that, on vague grounds, he has been detained in
terms of the impugned order of detention. He has also
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argued that the detaining authority has failed to establish
any live or proximate link between the activities of petitioner
and the order of detention.
6) Per contra , learned counsel for the respondents has
submitted that the detaining authority, after perusing the
dossier, has recorded its subjective satisfaction that the
activities of the petitioner were prejudicial to the
maintenance of security of the state and the grounds of
detention cannot be termed as vague as the detaining
authority has observed that the petitioner has been found
working as OGW to active terrorist Ehsan-ul-Haq of Murran
Pulwama and has been providing all possible assistance to
the active terrorist for his movement from one place to
another thereby evading his arrest. He has further argued
that the representation submitted by the petitioner was duly
considered and rejected by the detaining authority on
20.05.2025 and also by the Home Department on
06.06.2025.
7) Heard and perused the record.
8) The primary ground raised by the petitioner is that
despite the fact that no FIR has been registered against the
petitioner, he has been detained in terms of the impugned
order of detention.
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9) It is settled law that registration of FIR is not the
condition precedent to the issuance of detention order as the
sole purpose of detaining a person under the preventive
detention laws is to deter him from indulging in the activities
which provide basis for the issuance of an order of detention.
In this context, it would be apposite to take note of the
judgment of the Hon’ble Supreme Court in Haradhan Saha
v. State of W.B, (1975) 3 SCC 198 and the relevant para is
extracted as under:
19. The essential concept of preventive detention is that the
detention of a person is not to punish him for something he
has done but to prevent him from doing it. The basis of
detention is the satisfaction of the Executive of a reasonable
probability of the likelihood of the detenu acting in a
manner similar to his past acts and preventing him by
detention from doing the same. A criminal conviction on the
other hand is for an act already done which can only be
possible by a trial and legal evidence. There is no parallel
between prosecution in a court of law and a detention order
under the Act. One is a punitive action and the other is a
preventive act. In one case a person is punished on proof of
his guilt and the standard is proof beyond reasonable doubt
whereas in preventive detention a man is prevented from
doing something which it is necessary for reasons
mentioned in Section 3 of the Act to prevent.
10) A perusal of the record reveals that the dossier was
submitted by the sponsoring agency i.e. respondent No.3,
thereby narrating that the petitioner has been working as
OGW and providing logistic support to one active terrorist,
Ehsan-ul-Haq of Murran Pulwama and the petitioner was
th rd
bound down on 8 March, 2025 and 23 April, 2025, but he
did not change his behaviour and after taking note of the
report submitted by the field agencies, the petitioner was
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directed to be detained in terms of the impugned order of
detention. Accordingly, the contention raised by the
petitioner that no FIR has been registered against him and,
as such, he could not have been detained under the Act
supra, has no force and the same is rejected.
11) Secondly, it was contended that the grounds of
detention are vague and no illegal activities have been
detailed out in the grounds of detention necessitating the
issuance of order detention.
12) As already noted above, the detaining authority took
note of the dossier and after perusing the same and more
particularly after taking note of the fact that the petitioner
has been working as OGW to the active terrorist Ehsan-ul-
Haq of Murran Pulwama and providing all possible
assistance to him for his movement from one place to
another so as to enable the said terrorist to evade arrest,
recorded its satisfaction that it is necessary to detain the
petitioner. It is important to note that OGWs operate covertly
to avoid detection by security forces rather than in full public
view. Consequently, direct evidence of their activities is
rarely available, and intelligence reports often serve as the
primary source regarding their illegal conduct. Once the
sponsoring agency and the detaining authority have named
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the particular terrorist to whom the petitioner was providing
logistic support, it cannot be said that the petitioner has
been detained on vague grounds. While assessing the
legality of a detention order, this Court does not exercise
appellate jurisdiction and cannot substitute its view for the
subjective satisfaction of the Detaining Authority, especially
where the Authority has evaluated all relevant
circumstances necessitating the petitioner’s detention.
Reliance is placed upon the decision of the Apex Court in
Union of India v. Arvind Shergill , (2000) 7 SCC 601,
wherein it has
been observed as under:
4. The High Court has virtually decided the matter as
if it was sitting in appeal on the order passed by the
detaining authority. The action by way of preventive
detention is largely based on suspicion and the court
is not an appropriate forum to investigate the
question whether the circumstances of suspicion
exist warranting the restraint on a person. The
language of Section 3 clearly indicates that the
responsibility for making a detention order rests upon the
detaining authority which alone is entrusted with the duty
in that regard and it will be a serious derogation from that
responsibility if the court substitutes its judgment for the
satisfaction of that authority on an investigation
undertaken regarding sufficiency of the materials on
which such satisfaction was grounded. The court can
only examine the grounds disclosed by the
Government in order to see whether they are
relevant to the object which the legislation has in
view, that is, to prevent the detenu from engaging in
smuggling activity. The said satisfaction is subjective
in nature and such a satisfaction, if based on relevant
grounds, cannot be stated to be invalid. The authorities
concerned have to take note of the various facts including
the fact that this was a solitary incident in the case of the
detenu and that he had been granted bail earlier in
respect of which the application for cancellation of the
same was made but was rejected by the Court. In this
case, there has been due application of mind by the
authority concerned to that aspect of the matter as we
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have indicated in the course of narration of facts.
Therefore, the view taken by the High Court in the
circumstances of the case cannot be sustained.
Accordingly, this contention of the petitioner is
misconceived and is rejected.
13) This Court has perused the detention record and finds
that the detention order, communication addressed to the
detenue, the grounds of detention and other documents
th
comprising nine leaves were provided to the petitioner on 8
May, 2025 and in acknowledgement thereof, he has signed
the execution report. The detenue also executed one receipt
th
on 8 May, 2025, wherein he has also acknowledged that he
has received copy of warrant, notice of detention, grounds of
detention dossier, copies of complaints, beat report through
Sub Inspector, Mohammad Shafi. Further the
th
communication dated 7 May, 2025, addressed to the
petitioner, which has been placed on record by the petitioner
himself, reveals that the petitioner was informed about his
right to make representation both to the detaining authority
as well as to the Government against the order of detention.
14) The case of the petitioner was also referred to the
Advisory Board for its opinion and in terms of report dated
th
27 May, 2025, the Advisory Board opined in favour of
detaining the petitioner and thereafter the Government, in
terms of order dated 06.06.2025, confirmed the detention
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order. The record further depicts that the representation
submitted by wife of the petitioner to the Government has
been rejected on 06.06.2025 and the petitioner was informed
about the same on 07.06.2025.
15) The representation dated 19.05.2025 submitted by the
petitioner to the detaining authority has been considered
and rejected by the said authority on 20.05.2025 and the
result of consideration has been conveyed to the petitioner
which is evident from communication bearing No.
DMP/PA/25/233-36 dated 20.05.2025, which forms part of
the detention record.
16) I n view of the above this Court finds no reason to
show indulgence. The petition lacks merit and is

dismissed accordingly.

17) The detention record be returned to learned counsel for
the respondents.
(Rajnesh Oswal)
Judge

Srinagar,
30.10.2026
“Bhat Altaf-Secretary”
Whether the judgment is reportable: NO



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