IRSHAD AHMAD WANI 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.15/2026

Reserved on: 03.09.2026

Pronounced on: 11.09.2026

Uploaded on: 11.09.2026

Whether the operative part or full
judgment is pronounced: Full

Irshad Ahmad Wani
S/O Habibullah Wani
R/O Ghat Mohalla,
Tehsil Hajin, District Bandipora.

…Petitioner(s)

Through: Adv. Abid Ahmad Pandit.


Vs.


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

2. Divisional Commissioner,
Kashmir.

3. Sr. Superintendent of Police,
Bandipora.

4. Superintendent District Jail,
Bhaderwah.


…Respondent(s)

Through: Sr.AAG Mohsin Qadri with
AC Maha Majeed.


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

JUDGMENT

1.
The instant Habeas Corpus Petition has been filed by the
petitioner seeking quashing of preventive detention Order
passed by
No.DIVCOM-“K”/07/2026 dated 05.02.2026

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respondent No.2-Divisional Commissioner, Kashmir,
whereby the petitioner has been detained under Section 3
of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (hereinafter, "the PIT-
NDPS Act"), and seeking his release forthwith from
preventive detention.
2.
The case of the petitioner, in substance as set up, is that
the impugned order of detention is illegal, arbitrary and
unconstitutional; that the material relied upon by the
Detaining Authority did not furnish sufficient basis for
arriving at the requisite subjective satisfaction; that the
petitioner was already facing prosecution in respect of the
criminal cases referred to in the grounds of detention; that
the ordinary criminal law was sufficient to deal with the
alleged activities; that the constitutional safeguards
guaranteed under Article 22(5) of the Constitution of India
were not duly complied with.
3.
The respondents, per contra, have opposed the petition. It
is contended that the impugned order has been passed by
the competent Detaining Authority after careful
consideration of the material placed before it by the
sponsoring authority; that the grounds of detention
disclose the petitioner's repeated involvement in activities
relating to illicit trafficking in narcotic drugs and
psychotropic substances and demonstrate his propensity
to indulge in such activities in future; that the grounds of

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detention, together with the relied-upon documents, were
furnished to the detenu, that he was duly informed of his
right to make a representation.
4.
Heard learned counsel for the parties, perused the
detention record produced by the respondents and
considered the same.
5.
Before examining the individual grounds of challenge, it
would be appropriate to notice the settled principles
governing judicial review of an order of preventive
detention.
6.
Preventive detention is an exceptional measure and the
power has to be exercised with care and circumspection.
At the same time, the Indian Constitution itself recognises
preventive detention under Article 22(3)(b). The object of
such detention is not punitive but preventive, namely, to
prevent a person from indulging in activities which are
considered prejudicial to the objects specified in the
preventive detention statute.
7.
In Haradhan Saha v. State of West Bengal , reported as
1975 (3) SCC 198 , the Constitution Bench of the Supreme
Court of India explained the distinction between preventive
detention and prosecution under the ordinary criminal law
and held that the two operate in different fields. The mere
fact that a person is liable to be prosecuted or is actually
being prosecuted does not, by itself, preclude the
competent authority from passing an order of preventive

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detention, provided the statutory requirements are
otherwise satisfied.
8.
The scope of judicial review in matters of preventive
detention has been explained by the Hon’ble Supreme
Court in several decisions. The Court does not sit as an
appellate authority over the subjective satisfaction of the
Detaining Authority. What is required to be examined is
whether the authority was competent, whether it applied
its mind to relevant material, whether the satisfaction was
reached in accordance with law, whether irrelevant or
extraneous considerations have been taken into account,
and whether the constitutional and statutory safeguards
have been duly complied with.
9.
In State of Maharashtra v. Bhaurao Punjabrao
Gawande , reported as 2008 (3) SCC 613 , the Supreme
Court reiterated that the Court is not concerned with the
sufficiency of the material which persuaded the Detaining
Authority to arrive at its subjective satisfaction. Judicial
review is directed principally against the decision-making
process and not against the sufficiency of the material on
which the satisfaction is founded.
10.
Equally, the Supreme Court has repeatedly emphasised
that the subjective satisfaction cannot be arbitrary or
mechanical. In Shalini Soni v. Union of India , reported
as 1980 (4) SCC 544 , it was held that where the statute
entrusts a decision-making function to a statutory

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authority on the basis of subjective satisfaction, there is an
obligation to apply the mind to pertinent and proximate
matters and to eschew irrelevant and remote
considerations. The grounds supplied to the detenue must
contain the factual material which formed the basis of the
satisfaction so as to enable him to make an effective
representation.
11.
The constitutional safeguard contained in Article 22(5)
assumes particular significance in this context. The
detenue has a fundamental right to be informed of the
grounds of detention and to be afforded the earliest
opportunity of making a representation against the order.
In Kamleshkumar Ishwardas Patel v. Union of India ,
reported as 1995 (4) SCC 51 , which specifically dealt,
inter alia
, with preventive detention under the PIT-NDPS
Act, the Supreme Court underscored the importance of
consideration of the representation by the competent
authority.
12.
The law also requires that the material which formed the
foundation of the subjective satisfaction must be made
available to the detenue to the extent required for enabling
an effective representation. The Supreme Court in Shalini
Soni (supra) held that the "grounds" comprise not merely
factual inferences but the factual material which led to
such inferences. Thus, the constitutional guarantee is not
satisfied by furnishing conclusions alone.

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13.
In the present case, on a careful examination of the
detention record, this Court finds that the grounds of
detention are sufficiently specific and disclose the material
facts and circumstances which weighed with the Detaining
Authority. The relevant documents relied upon in forming
the subjective satisfaction was supplied to the detenue.
The detenue was also informed of his right to make a
representation against the order of detention. There is,
therefore, no material before this Court to conclude that
the petitioner-detenue was disabled from making an
effective representation. No specific relied-upon document,
the non-supply of which could have materially prejudiced
the petitioner's right under Article 22(5), has been
identified.
14.
It is true that in appropriate cases the failure to supply a
foundational or relied-upon document can vitiate the
detention. The Supreme Court has recently reiterated that
the right to make an effective representation carries with it
the corresponding obligation to furnish material which
actually weighed with the Detaining Authority, however,
every document merely referred to incidentally does not
necessarily become a document required to be supplied.
15.
Next contention of the petitioner is that the petitioner was
already facing prosecution in cases registered under the
NDPS Act and that, therefore, preventive detention was
unwarranted.

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16.
This Court finds no merit in the contention. The fact that
criminal proceedings are pending does not ipso facto
render preventive detention illegal. As noticed
hereinbefore, preventive detention and prosecution are
conceptually distinct. Preventive detention is intended to
prevent anticipated prejudicial conduct, whereas
prosecution is concerned with determining criminal
culpability for an offence already committed.
17.
In Haradhan Saha (supra), the Constitution Bench
recognized the co-existence of preventive detention and
prosecution. The principle was also considered in Rekha
v. State of Tamil Nadu , reported as 2011 (5) SCC 244 .
The latter decision, while emphasising the exceptional
nature of preventive detention and the need for strict
compliance with constitutional safeguards, does not lay
down an absolute prohibition against preventive detention
merely because ordinary criminal proceedings are pending.
18.
The material placed on record shows that the Detaining
Authority was conscious of the criminal cases pending
against the petitioner and nevertheless arrived at the
satisfaction that the petitioner's activities disclosed a
propensity to continue indulging in illicit trafficking in
narcotic drugs and psychotropic substances. The mere
availability of the ordinary criminal law, therefore, cannot
by itself furnish a ground for invalidating the detention
order. The relevant consideration is whether the Detaining

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Authority had material before it from which it could
reasonably arrive at the satisfaction that preventive
detention was necessary to prevent the petitioner from
continuing his prejudicial activities. The detenue was
found in possession of drugs within the jurisdiction of
Police Station Sumbal regarding which a case was
registered vide FIR No.10/2023 under Sections 8/22/29
NDPS Act, but was admitted to bail and again indulged in
the case of similar nature when drugs were recovered from
him within the jurisdiction of Police Station Bandipora vide
FIR No.267/2024 under Sections 8/22/29 NDPS Act, he,
however, again secured bail. Thus the argument that
ordinary law was sufficient to deter the detenue, is grossly
misconceived.
19.
It is also required to examine whether there existed a live
and proximate link between the antecedent activities of the
petitioner and the necessity for passing the detention
order.
20.
It is well settled that the prejudicial activities relied upon
for preventive detention cannot be so remote or stale as to
have lost their relevance. A live and proximate link must
exist between the past conduct and the apprehension of
future prejudicial activity. Where that link is snapped by
inordinate delay or intervening circumstances, the
subjective satisfaction may stand vitiated. However, the
question whether the link has been snapped must

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necessarily depend upon the facts and circumstances of
each case. The mere passage of some time between the
prejudicial activity and the detention order cannot, in
every case, mechanically invalidate the detention,
particularly where the material demonstrates continuity of
conduct or continuing propensity.
21.
In the present case, the detention record discloses the
incidents/cases relating to the petitioner's alleged
involvement in illicit trafficking of narcotic drugs. The
material considered by the Detaining Authority is not
confined to an isolated or remote incident. The chronology
and nature of the activities, taken cumulatively, furnished
a rational basis for the satisfaction that there was a
continuing propensity on the part of the petitioner to
indulge in prejudicial activities.
22.
The petitioner has also relied upon the fact that he was
granted bail in the criminal cases. The grant of bail, by
itself, does not create an absolute bar to preventive
detention. What is material is whether the Detaining
Authority was aware of the fact of bail and whether the
circumstances relating to the petitioner's release on bail
were considered while arriving at the requisite satisfaction.
23.
On perusal of the record, this Court finds that the fact of
the petitioner's release on bail was brought to the notice of
the Detaining Authority and was duly considered. The
satisfaction recorded by the Detaining Authority is that,

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notwithstanding his release, there was a reasonable
likelihood of the petitioner again indulging in activities
prejudicial to the objects of the PIT-NDPS Act.
24.
The principle is important because preventive detention
cannot be sustained merely by mechanically reproducing
the facts of criminal antecedents. There must be material
enabling the Detaining Authority to arrive at the
satisfaction that the person is likely to continue the
prejudicial activity. In the present case, however, the
satisfaction is supported by the antecedent material and
the circumstances placed before the Detaining Authority.
25.
In the present case, the Detaining Authority has
considered the relevant material, applied its mind to the
antecedents of the petitioner, taken into account the
criminal cases and the circumstances surrounding the
petitioner's release on bail, and thereafter recorded its
satisfaction that preventive detention was necessary to
prevent the petitioner from indulging in prejudicial
activities in future. There is no material on record to
demonstrate that the satisfaction is founded upon
irrelevant or extraneous considerations. Nor can it be said
that the detention order is based upon a mere ipse dixit of
the Detaining Authority. The grounds disclose the factual
basis and the nexus between the antecedent activities and
the apprehension of their continuation.

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26.
Preventive detention may undoubtedly be resorted to only
in accordance with law and upon scrupulous observance
of the constitutional safeguards. But where, as in the
present case, the Detaining Authority has acted within its
jurisdiction, considered relevant material, recorded the
requisite subjective satisfaction, furnished the grounds
and relied-upon material to the detenue, and afforded him
an effective opportunity of representation, this Court
would not be justified in substituting its own assessment
for that of the Detaining Authority.
27.
For the foregoing reasons, this Court finds no ground
warranting interference with the impugned order passed
under Section 3 of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988.
The Habeas Corpus Petition is, accordingly, dismissed .
The impugned order of preventive detention is upheld.
28.
Detention record is directed to be sent back.


(M. A. CHOWDHARY)
JUDGE

Srinagar
11.09.2026
Muzammil. Q

Whether the order is reportable: Yes / No