ISHFAQ AHMAD WANI vs UNION TERRITORY OF J AND K AND ORS. (HOME)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR





HCP No.217/2025

Reserved on: 03.09.2026

Pronounced on: 14.09.2026

Uploaded on: 14.09.2026

Operative part or full judgment: Full

Ishfaq Ahmad Wani
S/O Ab. Rasheed Wani
R/O Baghwadi Nowshera,
Srigufwara, District Anantnag.


…Petitioner(s)

Through: Adv. Mohammad Ibrahim Wani.


Vs.



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

2. District Magistrate, Anantnag.

3. Sr. Superintendent of Police,
Anantnag.


…Respondent(s)

Through: GA Ilyas Nazir Laway with
AC Nadiya Abdullah.


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

JUDGMENT


1. The instant petition under Article 226 of the Constitution
of India has been filed by the petitioner seeking quashing
of the order of detention bearing
No.18/DMA/PSA/DET/2025 dated 29.04.2025 passed
by respondent No.2- District Magistrate, Anantnag

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whereby the petitioner has been detained under the
provisions of Jammu and Kashmir Public Safety Act, 1978
(for short, “the Act”) in order to curtail his activities
prejudicial to the security of the State/UT of J&K.

inter alia
2. The petitioner has assailed the impugned order, ,
on the grounds that the same suffers from complete non-
application of mind; that the grounds of detention are
substantially a reproduction of the police dossier; that the
material relied upon is stale and has no live or proximate
nexus with the alleged necessity of preventive detention;
that FIR No. 60/2016 for the commission of offences
punishable under sections 147,148, 149, 336, 332,353,
307, 427 RPC of Police Station Srigufwara, which
constitutes the main basis of the detention, had
culminated in grant of bail in favour of the petitioner; that
the factum of grant of bail was not considered by the
detaining authority; that the grounds of detention are
vague and incapable of enabling the petitioner to make an
effective representation; that the grounds merely contain
generalized assertions regarding the petitioner being an
“OGW” of LeT outfit and that his activities are likely to
pose danger to the security of the State/UT of J&K,
without disclosing any concrete, proximate or
contemporaneous material demonstrating such likelihood;
that the detention order is founded upon conjectures and

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stale material rather than a genuine subjective satisfaction
based upon relevant material.

3. Learned counsel for the respondents, ex-adverso,
reiterating the assertions pleaded in the counter affidavit,
submitted that the petitioner has been found to be
involved in activities prejudicial to the security of the
State/UT of J&K and that preventive detention is a distinct
jurisdiction which can be invoked notwithstanding the
pendency of criminal proceedings or the availability of the
ordinary criminal law; that the material contained in the
dossier was duly considered by the detaining authority and
that merely because the petitioner was facing criminal
proceedings or had obtained bail therein would not denude
the authority of its power to pass an order of preventive
detention; that even if a subsequent FIR is registered, the
same by itself does not prevent the competent authority
from resorting to preventive detention provided the
statutory conditions are otherwise satisfied; that the
representation submitted on behalf of the petitioner was
duly considered and rejected by the competent authority.

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

5. Preventive detention constitutes an exceptional
encroachment upon the cherished right of personal liberty
guaranteed under Article 21 of the Constitution. The power
is preventive and not punitive. Its object is not to punish a

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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/UT of J&K or
maintenance of public order, as the case may be.

6. The subjective satisfaction of the detaining authority is
undoubtedly entitled to due weight, however, such
satisfaction is not wholly immune from judicial scrutiny.
The Court can examine whether the satisfaction has been
arrived at on the basis of relevant material, whether the
authority has applied its mind to such material, whether
irrelevant or extraneous material has been taken into
consideration and whether there exists a live and
proximate link between the antecedent conduct and the
necessity for preventive detention. This principle stands
firmly settled in Khudiram Das v. State of West Bengal,
reported as (1975) 2 SCC 81 .

7. The Supreme Court has repeatedly emphasized that
preventive detention cannot be permitted to become a
substitute for ordinary criminal law. In Rekha v. State of
Tamil Nadu reported as (2011) 5 SCC 244 , the Supreme
Court reiterated that the object of preventive detention is
prevention and not punishment and that there must be a
reasonable prognosis of future conduct based upon
relevant antecedent material. Similarly, in Sama Aruna v.
State of Telangana reported as (2018) 12 SCC 150 , the
Supreme Court held that past conduct can be taken into

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account only to the extent that it furnishes a reasonable
basis for concluding that the detenue is likely to engage in
similar prejudicial activities in the immediate future. The
Court emphasized that the live and proximate link between
the past conduct and the imperative need for detention
cannot be permitted to snap.

8. The detention record has been carefully examined. What
emerges is that FIR No. 60/2016 has been relied upon in
support of the detention, although the said criminal case
had admittedly culminated in grant of bail in the said case
by the competent court of law. There is nothing on record
to demonstrate that this material fact was meaningfully
considered by the detaining authority while arriving at the
requisite subjective satisfaction. The distinction between
existence of material and consideration of material is
significant. The fact that a particular FIR forms part of the
dossier does not by itself establish application of mind.
Once the criminal case relied upon by the authority had
culminated in grant of bail, the said fact constituted a
relevant and vital circumstance requiring consideration.
The detaining authority was required to examine whether
such material could still legitimately furnish the basis for
present apprehension regarding the petitioner's future
conduct.

9. The Supreme Court in Vijay Kumar v. State of J&K,
reported as (1982) 2 SCC 43 , while dealing with

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preventive detention under the J&K Public Safety Act,
underscored the necessity of the detaining authority
applying its mind to the circumstances relevant to the
necessity of preventive detention. The Court has
consistently treated the constitutional safeguards
surrounding preventive detention as substantive
safeguards and not mere formalities.

10. Another circumstance which assumes considerable
significance is the apparent similarity between the police
dossier and the grounds of detention. From the material
placed before this Court, it appears that, except for
changes in the numbering and form of the paragraphs, the
substance of the allegations remains substantially
identical.

11. It is true that there can be no absolute proposition
that reproduction of material from a police dossier, by
itself and in every case, invalidates an order of detention.
However, where the grounds disclose that the detaining
authority has merely adopted the police version without
independently evaluating the allegations, the inference of
non-application of mind becomes irresistible. The principle
was authoritatively stated by the Supreme Court in Jai
Singh v. State of Jammu & Kashmir reported as AIR
1985 SC 764 , where the Court deprecated the casual and
routine manner in which preventive detention orders
affecting personal liberty were passed. The same principle

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has repeatedly been applied in cases arising under the
J&K Public Safety Act. The Supreme Court's approach is
that the detaining authority must itself arrive at the
requisite satisfaction and cannot act as a mere conduit for
the police dossier.

12. The very recent jurisprudence of the Supreme Court also
makes it clear that the detaining authority cannot act as a
mere rubber stamp. In Vinod Bihari Lal Vs. State of
Uttar Pradesh & Anr., reported as 2025 INSC 767 , the
Court reiterated that the satisfaction of the competent
authority must be the natural culmination of consideration
of relevant and material facts and that absence of
application of mind to pertinent and vital material vitiates
the detention.

13. In the present case, the difficulty is compounded by the
fact that the grounds use broad expressions such as the
petitioner being an ‘OGW’ of LeT outfit and his activities
being prejudicial to the security of the State/UT of J&K
and likely to pose danger to common law-abiding people,
but do not, in the manner required by law, disclose
concrete and proximate facts from which such an
apprehension could reasonably be drawn.

14. Preventive detention cannot rest upon mere labels. The
authority must disclose the factual position which
connects the alleged activities of the detenue with the
statutory purpose for which the extraordinary power is

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exercised. A bald assertion that a person is an “OGW” or
that his activities are prejudicial to the security of the
State/UT of J&K, without sufficient particulars enabling
him to understand what precisely weighed with the
detaining authority, does not meet the constitutional
standard.

15. Article 22(5) of the Constitution and Section 13 of the
Public Safety Act confer upon the detenue a valuable right
to be informed of the grounds of detention and to make an
effective representation. The grounds, therefore, must be
sufficiently clear, definite and proximate to enable the
detenue to meet the allegations effectively. The Supreme
Court in Ram Krishan Bhardwaj v. State of Delhi, reported
as AIR 1953 SC 318 explained that communication of the
grounds means communication of the material necessary
to enable the detenue to make an effective representation.
The requirement is not satisfied by furnishing vague or
unintelligible grounds. The principle was reiterated in
Thahira Haris v. Government of Karnataka , (2009) 2 SCC
46 , that the constitutional and statutory safeguards would
be rendered meaningless if the detenue is not supplied
with the material which has actually weighed with the
detaining authority.

16. In the instant case, the representation submitted on behalf
of the petitioner was rejected by the Government on
12.08.2025 . However, the mere rejection of the

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representation cannot cure an otherwise invalid detention
order. The representation is an additional constitutional
safeguard. It cannot substitute the independent and
meaningful application of mind required at the stage of
making the detention order.

17. This Court is conscious of the settled proposition that the
existence of a criminal case or the fact that a person has
been enlarged on bail does not, by itself, bar preventive
detention. Preventive detention may, in an appropriate
case, be resorted to where the authority, upon
consideration of relevant material, is satisfied that
ordinary criminal law is insufficient to prevent the person
from engaging in prejudicial activities. But such power
cannot be exercised mechanically. There must be a
demonstrable and rational connection between the
material relied upon and the necessity for preventive
detention. In Rekha (supra) , the Supreme Court cautioned
that preventive detention cannot be used as a substitute
for the ordinary criminal process. Likewise, in Sama
Aruna (supra) , the Court held that stale incidents cannot
furnish the foundation for a present preventive detention
when the live and proximate link with the apprehended
future conduct has disappeared.

18. The Court is not called upon to determine the truth or
otherwise of the allegations contained in the police dossier.
That is not the permissible scope of judicial review in

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preventive detention. However, the Court is duty-bound to
ascertain whether the statutory and constitutional
safeguards have been observed and whether the subjective
satisfaction is founded upon relevant, proximate and duly
considered material.

19. On such examination, this Court finds that the impugned
detention order suffers from non-application of mind,
reliance upon stale and materially weakened antecedents,
failure to consider vital intervening circumstances
including bail granted in favour of petitioner in case FIR
No.60/2016 and insufficiently specific grounds to
establish the requisite live nexus between the past conduct
and the necessity for present preventive detention. Once
the subjective satisfaction is found to be vitiated on these
foundational grounds, the detention cannot be sustained
merely on the basis of the seriousness of the allegations or
the executive assertion that the petitioner is prejudicial to
the security of the State/UT of J&K. As observed by the
Supreme Court, personal liberty of a person is too
precious.

20. Having regard to the afore-stated discussion and foregoing
reasons, the petition succeeds. The impugned detention
Order No.18/DMA/PSA/DET/2025 dated 29.04.2025
passed by respondent No.2-District Magistrate, Anantnag
under the Jammu & Kashmir Public Safety Act, 1978, is
hereby quashed . The respondents are directed to release

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the petitioner forthwith from preventive detention, if his
custody is not required in any other case(s).

21. The petition is, accordingly, disposed of in the above
terms.

22. Detention record is ordered to be returned to the
learned counsel for the respondents.


(M. A. CHOWDHARY)
JUDGE

Srinagar
14.09.2026
Muzammil. Q

Whether the order is reportable: Yes / No