GHULAM HASSAN DAR vs UNION TERRITORY OF J AND K AND ANR. (HOME)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR




HCP No.148/2025

Reserved on: 23.04.2026

Pronounced on: 11.05.2026
Uploaded on: ____________

Whether the operative part or full
judgment is pronounced: Full

Gh. Hassan Dar (47 years)
S/O Late Abdul Aziz Dar
Through his wife Gulshana
R/O Budbugh,
District Kupwara.

…Petitioner(s)

Through: Adv. Imtiyaz Ahmad Sofi.

Vs.

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

2. District Magistrate, Kupwara.

…Respondent(s)

Through: GA Faheem Nisar Shah.

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

JUDGMENT


1. Vide detention Order No. 08/DMK/PSA of 2025 dated 30.04.2025
(‘impugned order’ for short) passed by respondent No.2-District
Magistrate, Kupwara, the petitioner was ordered to be detained under
preventive custody in terms of Section-8(1)(a)(i) of J&K Public Safety
Act, 1978 ( ‘the Act’ for short) with a view to prevent him from acting
in any manner detrimental to the ‘security of UT of J&K’.

2. Through the medium of the present petition, petitioner seeks quashment
of the said detention order on the grounds that the detenue, in terms of
the impugned order, has been detained under the Public Safety Act on

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false and flimsy grounds without any justification; that the grounds of
detention are vague and mere assertions of the detaining authority and
no prudent man can make an effective and meaningful representation
against these allegations. Further plea of the detenue is that he has not
been provided the material/documents relied upon by the detaining
authority, so as to make an effective representation before the detaining
authority; that he was not informed that he can make a representation
before the District Magistrate, therefore, a valuable right of the detenue
stands defeated; that the Detaining authority, while passing the
impugned order, has relied upon the stale grounds, therefore, the same
is not sustainable. It was prayed to quash the impugned order for the
afore-stated grounds.

3. Counter affidavit has been filed by respondent No. 2-District Magistrate
Kupwara, vehemently resisting the petition, contending that detaining a
person under the provisions of Public Safety Act is always preventive in
nature and its sole aim is to prevent a person from pursuing anti-
national/anti-social activities, which are prejudicial to the maintenance
of public order/security of the State/UT. In the instant case there is
enough material against the detenue which is highly suggestive of the
fact that the normal law of the land is not sufficient to prevent him from
continuing with his anti-national activities and it is evident that the
detenue is highly motivated and is not likely to desist from anti-national
and unlawful activities.

4. Perusal of the detention record would indicate that the detenue was
earlier arrested in a case registered vide FIR No.48/2002 at P/S
Kralgund under section 212 RPC and was acquitted by the competent
court of law. Thereafter, again the detenue was found involved in a case

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registered vide FIR No.101/2004 P/S Kralgund under sections 307
RPC, 7/27 A.Act; and FIR No.01/2005 under section 212 RPC P/S
Kralgund for his involvement in anti-national activities wherein he was
also acquitted. The aforestated reasons persuaded the Detaining
authority to curb his activities to order detention of the detenue, under
the provisions of Public Safety Act.

5. Learned counsel for the detenue has raised the plea of vagueness in the
grounds of detention. It is being stated that the allegations leveled in the
grounds of detention relate to the years 2002 to 2005 and those
activities have no proximity with present time for the purpose of
preventive detention unless any fresh activity is not attributed to the
petitioner. It is also contended by the learned counsel for the petitioner
that it is not mentioned in the impugned detention order that normal law
was ever invoked before taking recourse to preventive detention law
and that too was applied merely on the basis of surmises and
conjectures. It was prayed to upset the impugned order being
unsustainable for the aforestated grounds.

6. Learned counsel for the respondents, ex adverso , supporting the
detention order, contended that the detenue’s continuous anti-national
and illegal activities, made it imperative to detain the detenue under the
provisions of Public Safety Act and there were sufficient grounds
available for such detention. It is further contended that the live link is
still sustaining, as the detenue is still involved in the anti-national
activities and the adverse reports led the sponsoring agency to
recommend the detenue for preventive detention under the provisions of
the Public Safety Act.

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7. Heard learned counsel for the parties, perused the detention record
produced by learned counsel for the respondents and considered.

8. The detaining authority has based the detention order on the grounds
that the detenue indulged himself in the activities highly prejudicial to
security of the UT of J&K; that he was involved in the cases registered
at Police Station, Kralgund in the year 2002, 2004 and 2005 vide FIR
No.48/2002 under section 212 RPC; FIR No.101/2004 under sections
307 RPC, 7/27 A.Act; and FIR No.01/2005 under section 212 RPC,
however, in all the cases the petitioner was acquitted by the court of
competent jurisdiction; that he influenced by the radical ideology,
indulged in subversive activities; and that in view of terrorist attack in
Baisaran Valley of Pahalgam and to curb his activities, it was
imperative to detain the detenue to provide peaceful environment in the
region.

9. Except the cases FIRs registered in the year 2002, 2004 and 2005,
wherein detenue was alleged to have been involved in subversive
activities, however, there is no specific allegation against the detenue as
to how and in what manner, thereafter, he was involved in the activities
which were prejudicial to the security of the UT of J&K. The vague
grounds cannot be based to deprive a citizen of his cherished
fundamental right of liberty so as to detain him. Mere apprehension that
he was involved in some criminal activities in the years 2022 to 2005,
having been acquitted of all the charges by the trial court, there is no
justification for preventive detention of the detenue in the year 2025,
there being no live link and stale grounds.

10. In the case of
“Sama Aruna Vs. State of Telangana and others,”
reported in (2018)12 SCC 150 against a detention order dated

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23.11.2016 passed by the Commissioner of Police Rachakonda
Commissionerate, Rangareddy District, Telangana, the detenue, through
his wife, had preferred a writ petition challenging preventive detention
which came to be dismissed and the matter reached before the Hon’ble
Supreme Court of India in an appeal. The order of preventive detention
was based upon the grounds of detention which came to be referred to
six criminal cases against the detenue, four of which are of 2007, one of
2013 and one of 2014. The detention came to be questioned on the plea
of grounds being stale. The Hon’ble Supreme Court of India came to
consider the relevance of 9 to 14 years’ old incidents resulting in FIRs
through a grossly belated order of detention. In paragraphs 16 & 17, the
Hon’ble Supreme Court of India came up with the following reference:-
“16. Obviously, therefore, the power to detain,
under the Act of 1986, can be exercised only
for preventing a person from engaging in,
or pursuing or taking some action which
adversely affects or is likely to affect
adversely the maintenance of public order;
or for preventing him from making
preparations for engaging in such activities.
There is little doubt that the conduct or
activities of the detenu in the past must be
taken into account for coming to the
conclusion that he is going to engage in or
make preparations for engaging in such
activities, for many such persons follow a
pattern of criminal activities. But the
question is how far back? There is no doubt
that only activities so far back can be
considered as furnish a cause for preventive
detention in the present. That is, only those
activities so far back in the past which lead
to the conclusion that he is likely to engage
in or prepare to engage in such activities in
the immediate future can be taken into
account. In Golam Hussain alias Gama v.
Commissioner of Police, Calcutta and Ors.
(1974)4 SCC 530, this Court observed as
follows:
“5. No authority, acting rationally, can be
satisfied, subjectively or otherwise, of

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future mischief merely because long
ago the detenu had done something
evil To Rule otherwise is to sanction a
simulacrum of a statutory
requirement. But no mechanical test
by counting the months of the interval
is sound. It all depends on the nature
of the acts relied on, grave and
determined or less serious and
corrigible, on the length of the gap,
short or long, on the reason for the
delay in taking preventive action, like
information of participation being
available only in the course of an
investigation. We have to investigate
whether the causal connection has
been broken in the circumstances of
each case.

Suffice it to say that in any case, incidents
which are said to have taken place nine to
fourteen years earlier, cannot form the basis
for being satisfied in the present that the
detenu is going to engage in, or make
preparation for engaging in such activities.

17. We are, therefore, satisfied that the aforesaid
detention order was passed on grounds
which are stale and which could not have
been considered as relevant for arriving at
the subjective satisfaction that the detenu
must be detained. The detention order must
be based on a reasonable prognosis of the
future behavior of a person based on his past
conduct in light of the surrounding
circumstances. The live and proximate link
that must exist between the past conduct of a
person and the imperative need to detain him
must be taken to have been snapped in this
case. A detention order which is founded on
stale incidents, must be regarded as an order
of punishment for a crime, passed without a
trial, though purporting to be an order of
preventive detention. 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…”


11. The allegations leveled against the detenue that despite acquittal from
all the above mentioned cases, the petitioner did not mend his ways and

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is still inclined towards antinational activities, is all vague and in such a
situation the detenue would not be in a position to submit an effective
and a meaningful representation before the detaining authority or the
competent authority in the Government, to have a fresh look into the
matter. Vagueness does invalidate the detention order in the
circumstance. In this regard reliance can be placed on the judgment of
reported
the Apex Court, in case titled ‘ Chaju Ram Vs. State of J&K’
as AIR 1971 SC 263 , wherein it has been observed and enunciated that:-

Even as to the grounds, we have something to say. The
“
grounds charge him with having conspired with some
leaders of Democratic Conference and having incited
landless people of R.S.Pura Tehsil to forcibly occupy the
land comprised in Nandpur Mechanised Farm and to
have persuaded them to resist violently any attempt to evict
them. No details of the leaders of the Conference or of the
persons incited or the dates on which he conspired or
incited the squatters or the time when such conference
took place, are mentioned. It would be impossible for
anybody to make a representation against such grounds.
These grounds, on the authorities of this Court, too
numerous to be cited here, must be held to be vague.
Therefore on both the twin grounds, namely, that he was
deprived of his right to make a representation and also
because the grounds in themselves were very vague, we
must hold that there was no compliance with the law as
laid down in the Jammu and Kashmir Preventive
Detention Act. The result, therefore, is that the detention
must be declared to be unlawful and Chaju must be
declared to be entitled to his liberty. He is ordered to be
released. The detenu was questioned by us and he
expressed a desire that he may not be released in Delhi,
because he has no means of going back. He asked to be
released in Jammu. We direct therefore that he shall be
taken back to the place where he was in detention in
Jammu and released within the shortest possible time.”

12. It is the further argument of learned counsel for the petitioner that the
grounds of impugned detention order is a verbatim copy of the dossier
and no other material has been considered by the detaining authority
which speaks volumes about the non-application of mind on the part of
the detaining authority which does not justify the preventive detention

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and the detention order requires quashment. In a case titled ‘ Jai Singh

& Ors. v. State of Jammu & Kashmir ’ reported as AIR 1985 SC 764,
it has been observed that if the detention order is verbatim copy of the
dossier, it would amount to non-application of mind by the detaining
authority. Para-13 of the judgment being relevant is reproduced as
under:-

"13. Applying the settled legal position to the facts of the
present case, I find that the order impugned cannot stand
as it is based on grounds of detention, which is only
verbatim copy of police dossier. The order of detention, for
the reasons, exhibit total non- application of mind on the
part of detaining authority and therefore, the petition is
allowed and the detention order No. PSA/104 dated
16.10.2020 passed by the District Magistrate, Kathua-
respondent No. 2 directing the detention of Balbir Chand
S/O Rana R/O Chack Drab Khan, Tehsil and District
Kathua is quashed. Respondents are directed to release the
detenue forthwith, provided he is not required in
connection with any other case".


On perusal of dossier prepared and submitted by the police to the
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detaining authority and the impugned order passed by him, based
thereon, it is found that the impugned order, particularly the grounds
therefor, and the grounds mentioned in the dossier by the police are
almost verbatim, except for some cosmetic changes. The impugned
order is, thus, not sustainable on non-application of mind by the
detaining authority.

14. It is also notable that normal law in the instant case had to be assumed
to be sufficient to disable the detenue to indulge in any such activity
which may have been in the estimation of the detaining authority to be
treated prejudicial to the maintenance of public order. The preventive
detention is not a quick alternative to normal process, is what has been
laid down by the Hon’ble Apex Court in its three-Judge Bench

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judgment “Rekha Vs. State of Tamil Naidu & Anr.” reported as
(2011) 5 SCC, wherein it has observed that:-
“29. Prevention detention is, by nature, repugnant
to democratic ideas and an anathema to the
rule of law. No such law exists in the USA
and in England (except during war time).
Since, however, Article 22(3)(b) of the
Constitution of India permits preventive
detention, we cannot hold it illegal but we
must confine the power of preventive
detention within very narrow limits, otherwise
we will be taking away the great right to
liberty guaranteed by Article 21 of the
Constitution of India which was won after
long, arduous and historic struggles. It
follows, therefore, that if the ordinary law of
the land (the Penal Code and other penal
statutes) can deal with a situation, recourse to
a preventive detention law will be illegal.
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.”

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15. The impugned detention order passed on vague grounds, verbatim copy
of police dossier, failure on the part of the detaining authority to record
satisfaction that normal law proved insufficient to restrain the detenue
and stale grounds with no live link between the alleged activities in the
years 2002, 2004 and 2005 and the detention order passed in the year
2025, is found liable to be unsustainable on these counts.

16. For what has been held by the Apex Court in the afore-quoted case
laws and having regard to what has been observed hereinabove, the
impugned detention order does not sustain in the eyes of law. As such,
the present petition is allowed and the impugned detention order No.
08/DMK/PSA of 2025 dated 30.04.2025, is set aside. As a result, the
detenue namely Gh. Hassan Dar S/O Late Abdul Aziz Dar R/O
Budbugh, Kupwara , is directed to be released from the custody
forthwith, if not required in any other case(s).

17. The petition is, thus, disposed of, as allowed, in terms of the above
alongwith pending application(s).

18. Scanned detention record, as produced, be returned to learned counsel
for respondents.


(M. A. CHOWDHARY)
JUDGE
Srinagar
11.05.2026
Muzammil. Q


Whether the order is reportable: Yes / No