MOHD AYAZ vs UT OF J AND K THROUGH PRINCIPAL SECRETARY TO GOVT HOME DEPTT AND OTHERS
- Court
- Jammu and Kashmir High Court
1
Supple 142
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on: 08.05.2026
Uploaded on 08.05.2026
HCP No. 93/2025
…Petitioner(s)
Mohd Ayaz, age 43 years,
s/o Sh. Hassan Din
R/o Lohai, Tehsil Lohai Malhar, District
Kathua,
a/p loged at District Jail, Udhampur
Through: Mr. Ajay Gandotra, Sr Adv with
Mr. Gulbaz Sheikh, adv.
vs.
1 .UT of J&K, through Principal Secretary to
Govt. (Home) Department
Civil Sectt. Jammu
2.District Magistrate Kathua,
College Road, Shiv Nagar, Kathua.
3. Senior Superintendent of Police,
Kathua,
College Road, Shiv Nagar, Kathua.
4. Superintendent District Jail, Udhampur.
...Respondents.
Through: Mr. Suneel Malhotra, GA.
CORAM:
Hon’ble Mr. Justice Mohd. Yousuf Wani, Judge .
JUDGMENT
1)
Impugned in the instant petition, filed on behalf of the
petitioner/ detenu , under the provisions of Article 226 of
2
the Constitution of India, is the order of detention
bearing No. PSA/151 dated 18.03.2025, issued by the
respondent No. 2 i.e. District Magistrate, Kathua
(hereinafter referred to as the Detaining Authority for
short), in exercise of its powers vested under Section 8
(i) (a) of the Jammu and Kashmir Public Safety Act,
1978 (hereinafter referred to as the Act for short),
whereby the petitioner/ detenu was ordered to be
detained and lodged in the District Jail Udhampur, with
a view to prevent him from acting in any manner
prejudicial to the security of the State.
2) On behalf of the petitioner/ detenu , issuance of writs in
the nature of Certiorari and Mandamus, have been
sought for quashment of the impugned detention order
and consequent release of the petitioner/ detenu .
3) The impugned detention order has been challenged
through the medium of the instant petition on the
grounds, inter alia; that the same has been passed by the
learned detaining authority without the application of
mind, to all the relevant circumstances lacking requisite
subjective satisfaction, as would be clear from the
perusal of the grounds of detention compared with the
police Dossier which is based on materials extraneous
to the scope of the Act. That the grounds basing the
order impugned are the exact verbatim of the
Police Dossier except few
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sentences here and there. That it clearly shown that the
impugned order has been passed in huff and haste
manner, without independent and impartial application
of mind by the learned detaining authority which is a
strict requirement while determining the legality of a
preventive detention order as mandated by Hon'ble
Supreme Court of India in case reported as Amina
Begum v. Stateof Telangana - 2023 Livelaw (SC) 743
(Para 25). That three FIRs have been registered against
the petitioner/detenu out which in FIR No. 07/2010 u/s
298-A/34 RPC of P/S Mohlar he stands acquitted by
the learned Principal Sessions Judge, Kathoua vide order
dated 31.07.2018 by holding that no charges were
proved against the petitioner/detenu. That in respect of
the other two FIRs, 01/2021 & 09/2021 of P/S Malhar
under sections 295-A/439/109 & 456/323/341 IPC
respectively also forming the basis of the impugned
detention order, it is not mentioned or given
consideration to the fact that the petitioner-detenu
stands enlarged on bail in both the aforesaid FIRs by the
competent Court. That the detaining authority has not
applied its mind to ascertain the facts and assume
subjective satisfaction before issuing the impugned
detention order. That the mention of case FIRs in the
grounds of detention, in which the petitioner had already
been enlarged on bail, amounts to misrepresentation &
suppression of material facts, and shows malafides on
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part of respondent no. 2. That sponsoring authority did
not place the important fact of acquitted of petitioner in
case FIR No. 07/2010 of P/S Malhar which could have
made a different effect on the subjective satisfaction
allegedly assumed by the detaining authority. That the
detention order cannot sustain and needs to be quashed.
That in F.I.R. Nos 01/2021 & 09/2021 u/s 295-A,
439/109 IPC & 457/323/456/341 IPC respectively the
petitioner has been enlarged on bail by JMIC Billawar.
That in FIR No. 07/2010 u/s 298-A/341 RPC of P/S
Malhar, the petitioner has been already acquitted. That
the offences under case FIR Nos. 01/2021 & 09 of
2021 by no stretch of legal interpretation or judicial
precedent, fall within the ambit of " Security of the
State " which forms the sole basis for the impugned
detention order. That said offences may at the most fall
within the domain of “ law and order ”, and not
“ Security of State” . That it is a settled legal position
that for invoking preventive detention on the ground of
"Security of the State", the activities of the detenu must
be of such a grave and serious nature, so as to pose a real
threat to the sovereignty, integrity, or to safety of the
State. That the invocation of such a serious grounds in
the absence of any overt act or material to indicate threat
to the State machinery is nothing but a colourable
exercise of power. That reliance on the FIRs, which
bear no nexus with the alleged grounds, is legally
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untenable, and the Detention Order is liable to be
quashed on this ground alone. That the constitutional
and legal scheme under preventive detention law draws
a clear and categorical distinction between "Law and
Order", "Public Order", and "security of the State" each
representing escalating levels of threat and invoking
different thresholds of preventive action. That the
Hon'ble Supreme Court in Dr. Ram Manohar Lohia v.
State of Bihar, AIR 1966 SC 740 , has clearly laid down
that the acts that disturb 'law and order' are many times
of a much lesser gravity than those which affect ' public
order' , and in turn, those that affect 'public order are of
a lesser magnitude than those that threaten ' security of
the State’. That these terms are not to be used loosely or
interchangeably. That two Daily Diary Report extracts
relied upon in the Detention Order, which are dated
04.01.2025 & 10.01.2025 respectively contain very
vague and ill-informed contents devoid of particulars
and genuineness. That both the extracts though
differently dated have the same language and not a word
here and there and are verbatim of each other. That these
daily diary details are self serving documents prepared
by police in quick perpetual succession to increase the
volume of the Dossier. That none of these reports have
resulted in any fresh F.I.R. That these reports are non-
reliable, vague, filled with non-existent facts and cannot
form the basis for curtailment of personal liberty of
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petitioner. That the copy of detention record as provided
to the petitioner is illegible with several pages being
half-cut and entirely blackened and, unreadable. That
this gross defect in the communication of the grounds of
detention has seriously prejudiced the fundamental right
of the petitioner to make an effective representation
against the said order as guaranteed under Article 22(5)
of the Constitution of India. That it is a settled position
of law, reiterated in plethora of Judgments that proper
and complete communication of the grounds of
detention is sine qua non for the continued validity of a
preventive detention order. That in the absence of
legible and complete copy, the petitioner is deprived of
the opportunity to challenge the detention order
effectively. That the documents duly supplied to the
wife of the petitioner did not contain the total number of
pages/leaves, so provided. That further contents of the
incomplete documents were not read over and explained
to the detenu in his local language understandable by
him. That the timeline, in which, the process of
sponsoring, approving, ordering. and executing of the
Detention Order was carried out, is wholly out of live
and proximate link of the Detention Order with alleged
activities of petitioner prejudicial to the Security of
State. That the last F.I.R. was registered against the
accused/petitioner on 12.03.2021 and the last Daily
Dairy Report is dated 10.01.2025. The Detention Order
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was passed after 4 years of last F.I.R No. 09/2021 P/S
Malhar. The genuineness of the DDR details is disputed,
as they cannot be a ground for detention, being copy
paste version of each other. That, there is no live and
proximate link of the alleged activities of the petitioner
with the passing of Detention Order and the timelines
are in contravention of essential requirements under
detention laws, thereby rendering the order
unsustainable in the eyes of law. That this amounts to
the malafides on part of respondent no.2, rendering the
Detention Order as punitive rather preventive. That the
detenu has been referred to as a hardcore criminal when
that is not the case, as he was a daily wage laborer. That
the action of the authorities involved in detaining the
petitioner is not only patently arbitrary in nature but also
an abuse of power and leads to violation of the
fundamental rights of petitioner under Articles 14, 21,
and 22 of the Constitution of India. That the learned
Detaining Authority was under an obligation to furnish
translated copies of the FIR’s and the statements of
witnesses to the petitioner/detenu, so as to enable him to
understand the same in his local language. That the
petitioner/detenu is innocent and has never indulged in
any activity prejudicial to the security of the State and
the allegations leveled against him in the memo of
grounds of detention are totally false. That the
petitioner/detenu has never been involved in any
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unlawful activity. That the petitioner/detenu has never
provided any logistic support to any terrorists or any of
their associates. That the grounds relied upon by the
learned Detaining Authority are not only obsolete, stale,
ambiguous, indefinite and untrue, but also lack in
essential details, thus having no nexus with the purpose
sought to be achieved under the provisions of Act. That
the petitioner/detenu is the lone bread earner of his
family and on account of his continued detention, his
family members have been badly suffering for want of
maintenance. That the learned Detaining Authority
while passing the order impugned, has violated all the
procedural safeguards guaranteed under Article 22 (5) of
the Constitution of India and the petitioner/detenu has
got no other alternate or efficacious remedy available to
him, except to file the instant petition before this Court.
4) The petition has been resisted by the respondents through
the memo of objections on the grounds that same is not
maintainable in view of the fact that detention of the
petitioner stands ordered in terms of a valid and legal
order issued by the learned detaining authority in exercise
of its powers under section 8 of the Act.
That none of the legal, fundamental & statutory rights of
the petitioner have been violated by the answering
respondent.
That the detention of the petitioner/detenu was ordered
after due consideration of the dossier received from
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Senior Superintendent of Police (SSP) Kathua vide No.
Pros/25/12230-33/DPO dated 28.02.2025.
That the petitioner was found continuously and repeatedly
involved in anti national activities, thereby posing a
persistent threat to security of State.
That the Preventive detention of the petitioner, was
necessary to maintain the security of the state.
That the material relied upon, including FIRs, showed a
continuous pattern of conduct threatening law and order
as such the writ petition is liable to be dismissed.
That the petitioner/detenu is a known facilitator of
terrorist activities and has consistently remained involved
in formulating strategies aimed at disturbing the public
peace and tranquility in the area.
That a grave threat to the security and sovereignty of the
State, necessitated the taking of preventive measures.
That having regard to the gravity of the situation and after
due and careful application of mind, the petitioner/detenu
was detained under the provisions of the Act.
That the grounds of detention, detention warrant, and all
other relevant documents- comprising a total of 49 leaves
were duly read over in English and explained to the
detenu in Dogri/Urdu language, which he fully
understood.
That the petitioner/detenu was informed through this
office communication No. DMK/JC/2025//4112-17 dated
18.03.2025 regarding his detention under the Act.
That he was also provided a full and fair opportunity to
make a representation against the said order to the
Government within the stipulated time period.
That the Home Department vide communication No.
Home/PB-V/104/2025/(7635232) dated 21.07.2025
intimated the Respondents about the representation
received on behalf of the petitioner/detenu, which was
found to be without merit.
10
That the copy of the communication No. Home/PB-
V/104/2025/(7635232) dated 21.07.2025 was also
endorsed to Superintendent, District Jail Udhampur with
the directions to inform the petitioner/detenu regarding
the disposal of his representation.
That the Superintendent, District Jail Udhampur vide his
office letter No. DJU/MS/25/7645-48 dated 22.07.2025
has informed the petitioner/detenue as also to Fatima
Begum (wife of detenu) regarding disposal of
representation filed by him before the Respondents.
That as per the dossier received from the Senior
Superintendent of Police, Kathua, vide No.
Pros/25/12230-33/DPO dated 28.02.2025, and
considering the continuous and repeated involvement of
the petitioner/ detenu in Anti- National activities, his
detention was ordered.
That the petitioner/detenu was detained under the
provisions of the Act, in order to maintain public peace
and tranquility in the region.
That the petitioner is known to have a criminal mindset
and is reportedly involved in several anti-national
activities.
That the petitioner's persistent unlawful conduct and
criminal inclination, had become a challenge for
prevention of the same, from being escalated.
That the details of FIR's/cases registered against
petitioner/detenu are as follows:-
FIR No 07/2010 u/s 297-A/34 RPC
a)
FI No. 01/2021 u/s 295-A/429/109 IPC
b)
FIR No. 09/2021 U/S 457/323/456/34 IPC P/S Malhar
c)
That the petitioner/detenu is a known facilitator of
terrorist activities and has consistently remained involved
in formulating strategies aimed at disturbing the public
peace and tranquility in District Kathua.
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That the activities of the petitioner pose a grave threat to
the security and sovereignty of the State, which
necessitated preventive measures. It is further submitted
that the Hon'ble Supreme Court in case State of T.N. v.
Nabila, (2015) 12 SCC 127 has held that:
"...The power of preventive detention
is qualitatively different from punitive detention. The
power of preventive detention is a precautionary
power exercised in reasonable anticipation. It may or
may not relate to an offence. It is not a parallel
proceeding. It does not overlap with prosecution even
if it relies on certain facts for which prosecution may
be launched or may have been launched. An order of
preventive detention may be, made before or during
prosecution. An order of preventive detention may be
made with or without prosecution and in anticipation
or after discharge or even acquittal. The pendency of
prosecution is no bar to an order of preventive
detention. An order of preventive detention is also
not a bar to prosecution”.
That the action taken against the petitioner/detenu in the
past under substantive laws has not proved fruitful in
deterring him from indulging in Anti National activities.
That the law laid down by the Hon'ble Supreme Court in
Haradhan Saha v. State of W.B. (1975) 3 SCC 198 at
Paragraphs 32 and 33 of the judgment being relevant
herein is reproduced hereunder:
"32. The power of preventive detention is
qualitatively different from punitive detention. The
power of preventive detention is a precautionary
power exercised in reasonable anticipation. It may or
may not relate to an offence. It is not a parallel
proceeding. It does not overlap with prosecution even
if it relies on certain facts for which prosecution may
be launched or may have been launched. An order of
preventive detention, may be made before or during
prosecution. An order of preventive detention may be
made with or without prosecution and in anticipation
or after discharge or even acquittal. The pendency of
prosecution is no bar to an order of preventive
detention. An order of preventive detention is also
not a bar to prosecution.
33. Article 14 is inapplicable because
preventive detention and prosecution are not
synonymous. The purposes are different. The
authorities are different. The nature of proceedings is
different. In a prosecution an accused is sought to be
punished for a past act. In preventive detention, the
past act is merely the material for inference about the
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future course of probable conduct on the part of the
detenu."
That the Hon'ble Supreme Court in case Sunil Fulchand
Shah v. Union of India, (2000) 3 SCC 409, held as under:
"...Personal liberty is one of the most
cherished freedoms, perhaps more important than the
other freedoms guaranteed under the Constitution. It
was for this reason that the Founding Fathers enacted
the safeguards in Article 22 in the Constitution so as
to limit the power of the State to detain a person
without trial, which may otherwise pass the test
of Article 21, by humanizing the harsh authority
over individual liberty.
However, where individual liberty comes into
conflict with an interest of the security of the State or
public order, then the liberty of the individual must
give way to the larger interest of the nation."
That the Hon’ble Supreme Court has also held that there is
no parallel between prosecution in a Court of law and a
detention order under the Public Safety Act. One is a
punitive action and the other is a preventive act. In one,
case a person is punished to prove 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
the Act. The relevant part of the judgment is reproduced as
under:-
"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 to prove 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."
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5) I have heard the learned counsel for the petitioner Mr.
Ajay Gandotra Sr. Advocate and Mr. Suneel
Malhotra, learned GA. , for the respondents.
6) Learned counsel for the petitioner while reiterating his
stand taken by him as per the averments of the petition,
contended that the petitioner/ detenu is innocent and has
never been involved in the alleged activities. That the
petitioner has never been involved in any banned outfit
and he has also never provided any support or assistance
to any terrorist(s) as alleged. He contended that the
petitioner/ detenu was taken from his home and involved
in case FIR Nos. 01/2021 & 09/2021 by the Police
Station, Malhar. That the learned Trial Court granted him
bail in the said case FIR Nos., whereafter he was instead
of releasing detained under the garb of the impugned
detention order dated 18.03.2025.That the said case FIR’s
bearing Nos. 01/2021 & 09/2021 registered with Police
Station, Malhar, in which the petitioner/ detenu was
released on bail by the competent trial court, have been
made the main basis for passing of the impugned
detention order. He further contended that the case FIR
Nos. 01/2021 & 09/2021 was investigated for the
commission of the alleged offences punishable under
aforesaid Sections and the final police reports/charge
sheets were also produced by the police concerned before
the competent Trial Courts, in which the petitioner/ detenu
was enlarged on bail. The learned counsel for the
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petitioner further contended that since offences under the
aforesaid FIR numbers fall under “ law and order
regime ” and not “ Security of State ”, as such, it is
understood that the competent trial Court granted the
concession of bail to the petitioner/detenu for the said
offences upon his satisfaction to the effect that accusation
against him is not prima facie true.
The learned counsel further contended that there
appears to be no live link or proximity between the
alleged act of the petitioner/detenu leading to the
registration of last case last FIR 09/2021 with the PS
Malhar, as he stands already enlarged on the bail,
pending trial. The learned counsel also contended that the
charge against the petitioner/ detenu as per case FIR Nos.
& 01/2021 & 09/2021 of PS Malhar, is totally baseless
and fabricated.
The learned counsel for the petitioner/ detenu also
contended that the procedural guarantees under Article
22 (5) and Section 13 of the PSA were observed in
breach as the copies of FIR and the statements of
witnesses recorded during the investigation of the case as
well as the grounds of detention, were not furnished to
the petitioner/ detenu in time, thus disabling him to make
an earliest representation against his detention. He also
argued that while the criminal cases are pending trial
against the petitioner/ detenu , there was no justification
for his preventive detention in parallel and the
15
respondents even if aggrieved, could have assailed the
bail orders, which has not been done.
The learned counsel in support is his arguments,
placed reliance on the judgments of this Court passed in
“ Bashir Ahmad Dar vs Union Territory of J&K and
th
Anr, WP(Crl) No. 06/2021 decided on 15 July, 2022;
Imtiyaz Ahmad Chikla vs Union Territory of J&K and
th
Anr, WP(Crl) No. 150/2021, decided on 18 July, 2022;
and Sajjid Zahoor Khan vs Union Territory of J&K
th
and Anr, WP(Crl) No. 35/2023, decided on 25 August,
2023.”
The learned counsel for the petitioner prayed for
setting aside of the impugned order of detention and
release of the petitioner/ detenu .
7) The learned counsel representing the respondents
Mr. Suneel Malhotra ld GA, also reiterated his stand taken
in the reply affidavit. He contended that the detention
order impugned in the petition does not suffer from any
illegality or perversity, as the same was passed by the
learned Detaining Authority in exercise of its powers
vested in it, in terms of the provisions of Section 8 (1) (a)
(i) of the Act, upon his due application of mind, having
regard to the conduct of the petitioner/ detenu and his
apprehension of repeating the commission of unlawful
activities. He submitted that the object of the preventive
detention is to prevent an individual from committing any
illegal activity prejudicial to the security of the State or the
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maintenance of the social order and not to punish him. He
further contended that the preventive detention is not the
parallel proceeding of a trial, which is held by a court and
is concluded on the basis of the evidence. He further
contended that the petitioner/ detenu was working as an
upper ground worker of banned outfits, who was carrying
out anti-national activities including transportation of
terrorists and providing shelter to them. It was also
contended by the learned GA that the learned Advisory
Board constituted under Section 14 of the Act on
reference, examined the case against the petitioner/ detenu
and made its opinion in favour of the detention order. That
the preventive detention of the petitioner/ detenu was felt
to be imperative, with a view to prevent him from acting
in any manner prejudicial to the security of the State.
He further contended that the procedural formalities
as mandated under Article 22(5) of the Act were complied
with by furnishing to the petitioner/detenu copies of
detention order and the grounds of detention immediately
upon his arrest and the grounds of detention were read
over and explained to him in his local language. He
contended that even the grant of bail in criminal offences
cannot debar the Ld. Detaining Authority to order the
preventive detention of an individual, which appears to be
imperative and unavoidable. He also contended that the
preventive detention is aimed at to protect the society and
that there is immediate and direct link between the
17
petitioner/ detenu’s past conduct and likelihood of his
repetition of the same.
The learned UT counsel while placing reliance on
the authoritative judgments of the Hon’ble Apex Court
cited as “Hardhan Saha vs State of West Bengal (1975) 3
SCC 198; State of Bombay v. Atma Ram Shridhar
Vaidya, AIR 1951 SC 157 ; .”submitted that it has been
observed in the said cases that, there is no parallel
between the prosecution in a court of law and a detention
order under the PSA. That one is punitive action and the
other is preventive act. That in one case, a person is
punished to prove 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 the reasons mentioned in the Act,
to prevent.
On the strength of the reliance placed on the above
referred judgments, the learned UT counsel contended that
it has been held in the cited judgments that preventive
detention is devised to afford protection to the society.
That Court must be conscious that the satisfaction of the
Detaining Authority is “subjective” in nature and the court
cannot substitute its opinion for the subjective satisfaction
of the Detaining Authority and interfere with the order of
detention. That it was also held in one of the relied upon
cases that, “ however, where an individual’s liberty
comes in conflict with the interests of the Security of
18
the State or maintenance of public order, then the
liberty of the individual must give way to the larger
interest of the nation.” That there is a direct and
immediate link between the petitioner/ detenu’s past
conduct and his apprehended future activities. That the
collective assessment of the grounds of detention has led
the learned Detaining Authority to reach subjective
satisfaction for placing the petitioner/ detenu under the
preventive detention. That the petitioner/ detenu indulged
in various anti-national activities which facilitated the
strengthening of the network of banned outfit workers on
ground. That the activities in which the petitioner/detenu
has indulged, are highly objectionable and prejudicial,
which are adversely affecting the peace and tranquility in
the society. That the petitioner/ detenu was found in close
touch with the terrorists of different organizations for the
purpose of carrying out subversive activities. That the
petitioner/ detenu was working as OGW of banned outfit
and, as such, his preventive detention was imperative.
That he is involved in the case FIR No. 09/2021 under
Section 457/323/456/34 RPC of Police Station Malhar.
That the details of the illegal activities of the
petitioner/ detenu are delineated in the grounds of
detention as also in the dossier. That the learned Advisory
Board constituted under Section 14 of the PSA upon
examination of the case of the petitioner/ detenu , accorded
approval as per its opinion on reference.
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8) I have perused the instant petition, reply affidavit
filed by the respondents and the copies of documents
enclosed with the same. I have also gone through the copy
of the detention record produced by the learned counsel
for the respondents. It appears from the perusal of the
record that the registration of case FIR numbers all of P/s
Malhar has been made the main basis of the detention
order by the respondents, in addition to the other
allegations/inputs against him regarding his alleged
involvement in the commission of unlawful activities.
9) It was contended by the learned counsel for the
petitioner/ detenu that the petitioner/ detenu was bailed out
in the case FIR Nos. 01/2021 & 09/2021 of PS Malhar
U/Ss 295-A/439/109, 456/323//341 IPC , only after the
competent Trial Court was convinced in the light of the
evidence that the allegations/charge against the
petitioner/ detenu does not seem to be prima facie true.
The learned counsel for the petitioner contended that the
petitioner/detenu stands already acquitted in case FIR
07/2010 of Police Station Malhar by the trial court of Ld
Principal District & Sessions Judge, Kathua vide his order
dated 31.07.2018 passed on the said criminal case. The
petitioner/detenu has placed on record a copy of the said
order dated 31.07.2018 as annexure-III to the petition.
10) It is thus, clear that petitioner/detenu stood already
acquitted in first FIR No. 07/2010 and also stands
enlarged on bail in other two FIR Nos. i.e 01/2021 &
20
09/2021 of Police Station Malhar at the time of passing of
the detention order when the same case FIR’s constitute a
main basis of the passing of the detention order.
11) So far as case FIR Nos. 01/2021 & 09/2021 of
Police Station Malhar are concerned, the offences alleged
therein fall within the ambit of ordinary criminal law
infractions. There is no offence under the said FIRs which
constitutes an offence against the security of the State.
12) The GD Reports dated 04.01.2025 & 10.01.2025
cannot justify the preventive detention against the detenu.
The contents of the said GD Reports pertain to some
allegations without being backed by formal complaints or
proceeded by formal registration of case FIRs and thus
cannot justify the preventive detention of the detenu. It is
well settled that the preventive detention cannot be based
on the GD Reports being unverified.
13) In the opinion of this Court, there appears to be no
proximate or live link between the allegations leading to
the registration of case FIR Nos. 01/2021 & 09/2021 of PS
Malhar and need for issuance of the impugned detention
order, maintaining a gap of more than four years. The
impugned detention order on this account, appears to be
suffering from illegality. This Court feels fortified in its
opinion by the authoritative judgment of the Hon’ble
Supreme Court reported in “Rajinder Arora Vs. Union of
India and others” AIR 2006 (4) SCC 796, decided on
21
10.03.2006 ”. The relevant paras of the judgment are
reproduced as hereunder:-
“The conspectus of the above decisions can be
summarized thus: The question whether the prejudicial
activities of a person necessitating to pass an order of
detention is proximate to the time when the order is
made or the live link between the prejudicial activities
and the purpose of detention is snapped depends on the
facts and circumstances of each case. No hard and fast
rule can be precisely formulated that would be
applicable under all circumstances and no exhaustive
guidelines can be laid down in that behalf. It follows
that the test of proximity is not a rigid or mechanical
test by merely counting number of months between the
offending acts and the order of detention. However,
when there is undue and long delay between the
prejudicial activities and the passing of detention order,
the court has to scrutinize whether the detaining
authority has satisfactorily examined such a delay and
afforded a tenable and reasonable explanation as to why
such a delay has occasioned, when called upon to
answer and further the court has to investigate whether
the causal connection has been broken in the
circumstances of each case.
Similarly when there is unsatisfactory and unexplained
delay between the date of order of detention and the
date of securing the arrest of the detenu, such a delay
would throw considerable doubt on the genuineness of
the subjective satisfaction of the detaining authority
leading to a legitimate inference that the detaining
authority was not really and genuinely satisfied as
regards the necessity for detaining the detenu with a
view to preventing him from acting in a prejudicial
manner.”
14) The learned Detaining Authority has not addressed
the aspect as to how the normal criminal law is
inadequate to deal with the petitioner/detenu. The
petitioner/detenu was admitted to bail by the competent
Trial Court with strict conditions appended to the bail
order. Said conditions seem to be sufficient to regulate and
keep a surveillance on the activities of the
petitioner/ detenu . It is not the case of the learned
Detaining Authority that the bail orders were assailed
before any competent forum and prayer of the UT for
cancellation of the bail was not allowed. It is also not the
22
case of the respondents that the petitioner/ detenu
immediately after his release in the case FIR Nos 01/2021
& 09/2021 of PS Malhar pursuant to the bail orders
granted by the competent court, indulged in any illegal
activity, with any specific allegation. On this account also,
the issuance of the impugned detention order was not
unavoidable.
15) In “Rekha Vs. State ofTamil Nadu, (2011) 5 SCC
244 ” , the observations made by the Hon’ble Apex Court at
Paras 21, 29 & 30 deserve a needful mention
“21. It is all very well to say that preventive detention
is preventive not punitive. The truth of the matter,
though, is that in substance a detention order of one
year (or any other period) is a punishment of one year’s
imprisonment. What difference is it to the detenu
whether his imprisonment is called preventive or
punitive?
*
29. Preventive 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.”
16) In “ Vijay Narain Singh Vs. State of Bihar, (1984) 3
SCC 14” , the Hon’ble Apex Court has held at Para 32 of the
23
judgment through Hon’ble E.S.Venkataramiah, J. (as the Chief
Justice then was) as under:-
“32....It is well settled that the law of preventive
detention is a hard law and therefore it should be
strictly construed. Care should be taken that the liberty
of a person is not jeopardized unless his case falls
squarely within the four corners of the relevant law.
The law of preventive detention should not be used
merely to clip the wings of an Accused who is involved
in a criminal prosecution. It is not intended for the
purpose of keeping a man under detention when under
ordinary criminal law it may not be possible to resist
the issue of orders of bail, unless the material available
is such as would satisfy the requirements of the legal
provisions authorizing such detention. When a person is
enlarged on bail by a competent criminal court, great
caution should be exercised in scrutinizing the validity
of an order of preventive detention which is based on
the very same charge which is to be tried by the
criminal court.”
17) In “A.K.Roy Vs. Union of India, (1982) 1 SCC
271” it was held at Para 70 of the judgment as under:-
“70. * We have the authority of the decisions in …
for saying that the fundamental rights conferred by the
different articles of Part III of the Constitution are not
mutually exclusive and that therefore, a law of
preventive detention which falls within Article 22 must
also meet the requirements of Articles 14, 19 and 21.”
18) This Court is also in full agreement with the
authoritative law relied upon by counsel for the respondents Mr.
Suneel, ld GA to the effect that the object of the preventive
detention of an individual is preventive in nature and not
punitive. Admittedly, the preventive detention cannot be
supposed to be a parallel proceeding. The object of the
preventive detention is to deter a person in advance from
indulging in any anti-national or anti-social activities prejudicial
to the security of the State and/or interests of the society.
Admittedly, where an individual liberty and the right of the
entire society to a peaceful life are pitted together, the individual
24
liberty has to give way to the social interest or the interest of the
State, as the case may be. However, as hereinbefore mentioned,
there does not appear to be a live link between the alleged acts,
resulting in the registration of case FIR Nos. 01/2021 & 09/2021
with Police Station Malhar and the need for issuance of the
impugned detention, order with a gap of more than four years. It
is also not the case of the respondents that the petitioner/detenu
upon his release pursuant to the bail order, repeated the alleged
unlawful activities.
19) It is very needful to mention that the offences in the
case FIR Nos. 01/2021 & 09/2021 of Police Station Malhar do
not cover any allegations of activities prejudicial to the security
of the State.
21) The petitioner had already been enlarged on bail in
both the case FIRs before passing of the impugned detention
order. The mention of the same in the grounds of the detention
as a strong basis reflects the non-application of the mind on the
part of the learned detaining authority.
22) The preventive detention needs to be passed with
great care and caution keeping in mind that a citizens most
valuable and inherent human right is being curtailed. The arrests
in general and the preventive detentions in particular are an
exception to the most cherished fundamental right guaranteed
under Article 21 of the Constitution of India. The preventive
detentions are made on the basis of subjective satisfaction of the
detaining authority in relation to an apprehended conduct of the
detenu by considering his past activities without being backed by
25
an immediate complaint as in the case of the registration of the
FIRs and, as such, is a valuable trust in the hands of the trustees.
The provisions of Clauses (1) and (2) of Article 22 of our
Constitution are not applicable in the case of preventive
detentions. So, the provisions of Clause (5) of the Article 22 of
our Constitution, with just exception as mentioned in Clause (6),
together with the relevant provisions of the Section 8 of PSA
requiring for application of mind, subjective satisfaction,
inevitability of the detention order, proper and prompt
communication of the grounds of detention and the information
of liberty to make a representation against the detention order,
are the imperative and inevitable conditions rather mandatory
requirements for passing of a detention order.
24) In “Vijay Narain Singh Vs. State of Bihar, (1984)
3 SCC 14 ”, the Hon’ble Apex Court has held at Para 32 of the
judgments as under:-
“32. It is well settled that the law of preventive detention
is a hard law and therefore it should be strictly construed.
Care should be taken that the liberty of a person is not
jeopardized unless his case falls squarely within the four
corners of the relevant law. The law of preventive
detention should not be used merely to clip the wings of
an Accused who is involved in a criminal prosecution. It
is not intended for the purpose of keeping a man under
detention when under ordinary criminal law it may not
be possible to resist the issue of orders of bail, unless the
material available is such as would satisfy the
requirements of the legal provisions authorizing such
detention. When a person is enlarged on bail by a
competent criminal court, great caution should be
exercised in scrutinizing the validity of an order of
preventive detention which is based on the very same
charge which is to be tried by the criminal court.”
25) For the foregoing discussion, this Court is of the
opinion that it may meet the ends of justice in case the impugned
detention order bearing No. PSA/151 dated 18.03.25, issued by
26
the respondent No. 2, (Ld. District Magistrate Kathua) is set
aside and the petitioner/ detenu is ordered to be released from his
preventive detention under the aforesaid order.
26) It is accordingly ordered.
27) Copy of this order be immediately forwarded to the
Respondents 2 to 4 for compliance.
28) Detention record is ordered to be returned to the
learned G A, concerned.
29) Disposed of.
(MOHD. YOUSUF WANI)
JUDGE
Jammu:
08.05.2026
“Ayaz”
i) Whether the Judgment is reportable in law books/journals: ?
YES.
ii) Whether judgment is reportable in Media(Print/Electronic) ?
No.
7)
Syed Ayaz Hussain
2025.11.19 09:20
I attest to the accuracy and
integrity of this document