GHULAM HASSSAN MALLA TH. HIS WIFE vs UNION TERRITORY OF J AND K (HOME) AND ORS

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR



HCP No.189/2025

Reserved on: 16.04.2026

Pronounced on: 22.04.2026
Uploaded on: 23.04.2026

Whether the operative part or full
judgment is pronounced: Full


Ghulam Hassan Malla,
S/O Mohammad Jamal Malla,
Through his wife Sara Begum,
R/O Harden Sever, Lolab, Kupwara.

…Petitioner(s)

Through: Adv. Sami Sabir Lone.


Vs.

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

2. District Magistrate, Kupwara.

3. Superintendent Central Jail, Jammu.


…Respondent(s)

Through: GA Faheem Nisar Shah.


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

JUDGMENT


1. Habeas Corpus Petition is a legal instrument used to challenge
unlawful detention. It compels the authorities to bring the detained
individual before the court to examine the legality of their detention.

The petitioner herein namely Ghulam Hassan Malla is aggrieved of
2.
the order passed by the District Magistrate, Kupwara-respondent
No.2 (for short ‘Detaining Authority’), who, in exercise of powers
conferred on him under Section 8(1)(a)(i) of the J&K Public

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Safety Act, 1978, has detained the petitioner in order to prevent him
from the activities prejudicial to the security of the UT of J&K in
terms of detention Order No. 16-DMK/PSA of 2025 dated
01.05.2025
(for short ‘impugned order’).

1. The order of detention is challenged inter alia, on the grounds that
the respondents have not followed due procedure of law while
detaining the detenue under the preventive law which renders his
detention illegal; that the illegal activities attributed to the detenue
are all imaginary, false, baseless, concocted and based on surmises;
that the detenue was illegally implicated in FIR No. 57/2013 under
Section 13 of Unlawful Activities (Prevention) Act registered at
Police Station, Lalpora; that the petitioner after facing full trial in
said FIR No.57/2023 had finally been acquitted from the case; that
after registration of FIR No. 57/2013 there are no fresh allegations
leveled against the detenue; that the detaining authority has not
applied its mind while preparing the grounds of detention and has
acted as spokesman of the Police agencies and has framed the
grounds of detention at their behest; that there is no cogent material
to detain the detenue under the preventive law; that the satisfaction is
illusory and not valid one; that the detention of the detenue is
patently illegal and against the law and deserves to be quashed.

2. Respondents, pursuant to notice after admission of the petition to
hearing, filed their counter affidavit, wherein it is stated that the
order of detention is based on a reasonable prediction of future
behavior of the detenue. The detenue’s anti-national and illegal
activities have posed a serious threat to the public safety and security

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of State. It is submitted that the preventive detention is devised to
afford protection to the Society and the object is not to punish a man
for having done something but to intercept him before he does it and
to prevent him from doing. It is further stated that any preventive
measures, even if they involve some restraint or hardship upon
individuals, do not contribute in any way to the nature of
punishment.

3. 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 year 2013 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.

4. 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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5. Heard, perused the material available on record and considered the
same.

6. The detaining authority has based the detention order on the grounds
that the detenue was category-B Over Ground Worker (OGW) of
banned organization of JKLF, involved in providing food and shelter
to terrorist besides providing logistic support to them; that he was
involved in a case registered at Police Station, Lalpora in the year
2013 vide FIR No.57/2013 under sections 7/27 A. Act, 307 RPC and
13 Unlawful Activities (Prevention) Act, in which charge-sheet was
laid before Sessions court, Kupwara, with the accusation to have
assisted a terrorist Mohd Amin Malla R/O Gadwad Server, with
food, shelter on 23.07.2013, who was killed in an encounter by
troops of 18RR(Army); that he influenced by the radical ideology
had 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.

7. The allegations leveled against the detenue that he was involved in
terrorist acts particularly promoting subversive activities and
influenced by radical ideology having friendships with terrorists and
radicals directly or indirectly, 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 the Apex Court, in case titled ‘ Chaju Ram Vs. State of J&K’

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,
reported 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.”

8. 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 and the detention order requires quashment.

9. 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:-

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"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".


10. On perusal of dossier prepared and submitted by the police to the
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 this account alone.

It is also notable that normal law in the instant case had to be
11.
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 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

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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.”

12. Except the case FIR registered in the year 2013, wherein detenue
was alleged to have provided food, shelter and logistic support to a
terrorist who was killed in an encounter by the Army, there is no
specific allegation against the detenue as to how and in what manner
he had provided logistic support to any of the terrorists as an OGW.

13. The vague grounds cannot be based to deprive a citizen of his
cherished fundamental right of liberty so as to detain him. Mere

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apprehension that he was involved in some criminal activities in the
year 2013, 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.

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

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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
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

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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…”


15. The impugned detention order passed on vague grounds, verbatim
copy of police dossier, and 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 year 2013 and the detention order passed in
the year 2025, is found liable to be quashed 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. 16-DMK/PSA of 2025 dated 01.05.2025, is set aside. As
a result, the detenue namely Ghulam Hassan Malla S/O Mohammad
Jamal Malla R/O Harden Sever, Lolab, Kupwara , is directed to be
released from the custody forthwith, if not required in any other
case(s).

17. Disposed of, in terms of the above alongwith connected
application(s).

( M. A. CHOWDHARY )
JUDGE
Srinagar
22.04.2026
Muzammil. Q

Whether the order is reportable: Yes / No