MOHD AYOUB NAJAR TH.HIS WIFE vs UNION TERRITORY OF J AND K TH.PRINCIPAL SECRETARY TO GOVT HOME DEPTT AND OTHERS

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR



HCP No.16/2026
Reserved on: 02.06.2026

Pronounced on: 04.06.2026

Uploaded on: 04.06.2026

Operative part or full judgment - Full


Mohd Ayoub Najar
S/O Late Ab. Khaliq Najar,
R/O Waniyar Rathpora
A/P Kounsar Colony
Palpora NoorBagh District Srinagar.


…Petitioner(s)


Through: Adv. Wajid Mohammad Haseeb.


Vs.


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

2. Divisional Commissioner Kashmir,
Srinagar.

3. Superintendent of Police,
Srinagar.


…Respondent(s)


Through: Sr.AAG Mohsin Qadri with
Adv. Haaris Khan, AC.



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

JUDGMENT

1. Challenge in this petition has been thrown to a Detention
Order No. dated 15.07.2025
DIVCOM“K”/125/2025
(‘impugned order’ for short) passed by the Divisional

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Commissioner Kashmir-respondent No.2, vide which the
petitioner namely Mohd Ayoub Najar (‘the detenue’ for short)
has been ordered to be detained and lodged in Central Jail
Jammu under the provisions of the Prevention of Illicit Traffic
in Narcotic Drugs and Psychotropic Substances (PITNDPS)
Act, 1988.
1. It is pleaded by the petitioner in his petition that the impugned
detention order is legally unsustainable being founded upon
stale and irrelevant material; that the petitioner was allegedly
involved in two cases registered vide FIR No. 02/2014 under
section 8/22 NDPS Act and FIR No. 10/2015 under section
8/20 NDPS Act, both registered at Police Station Safakadal,
whereas the detention order came to be passed in the year
2025 after a lapse of almost a decade; that there exists no live
and proximate link between the alleged antecedents of the
petitioner and the order of detention; that the detention was
recommended on 05.06.2025 however, the detention order
was passed on 15.07.2025 without any fresh intervening
material or explanation for such delay; that the grounds of
detention are vague, indefinite and reflective of non-
application of mind; that the detention order is bad in law and
deserves to be quashed.
2. Respondents, pursuant to the issuance of notice, have filed
their reply/counter affidavit, wherein it is stated that the
fundamental concept of preventive detention is not intended to
punish someone for actions they have already taken but to
prevent them from taking such actions in future; that the basis

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for detention rests on the Executive’s satisfaction with a
reasonable probability or likelihood of the detenue from
committing any of the acts within the meaning of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988; that
the detention order is based on a reasonable prediction of
future behaviour considering the detainee’s past conduct in
light of the surrounding circumstances; that there is a direct
and immediate link between the detainee’s past conduct and
current or imminent future activities; that the collective
assessment of the grounds for detention has led the detaining
authority to reach a subjective satisfaction for placing the
petitioner under preventive detention; that the present petition
is legally misconceived and is without any merit, therefore
deserves to be rejected.
3. Heard learned counsel for the parties, perused the detention
record and considered the same.
4. While reiterating the grounds urged in the petition, learned
counsel for the petitioner argued that the petitioner is a law
abiding and peace loving citizen and has never involved in any
subversive activity which would cause prejudice to the social
order of the UT of J&K; that the petitioner was arrested by the
police some ten years back and was implicated in two cases
registered vide FIR No.02/2024 and FIR No. 10/2015,
however, the petitioner was admitted to bail in both the cases
on 21.01.2014 and 23.02.2015 respectively by the court of
competent jurisdiction and was released from custody; that
since his release, the petitioner is living his life peacefully but

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on 17.07.2025 the petitioner was again arrested by police
personnel of Police Station Safakadal from his home and was
kept in illegal custody in the said Police Station; that on same
day the petitioner was shifted to the Central Jail Jammu to be
detained in terms of the impugned order which is sought to be
quashed through the medium of the present petition.
5. Learned counsel for the respondents, ex-adverso , submits
that the preventive detention is designed to protect Society
from the menace of illicit drugs; that the detention order is not
based upon stale grounds but upon adverse reports furnished
by the sponsoring agency; that the grounds of detention give
complete picture of activities of the petitioner which on the
face of them were highly prejudicial to the health and welfare
of masses; that it is well settled law 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 the entire relied upon material was furnished to the
detenue and all procedural safeguards stood complied with.
6. Preventive detention constitutes a serious encroachment upon
the fundamental right of a citizen and personal liberty
guaranteed under Article 21 of the Constitution of India and,
therefore, constitutional and statutory safeguards governing
such detention must receive strict construction. Though the
satisfaction of the detaining authority is subjective, so it is not
beyond judicial scrutiny. Where the detention order is based
upon stale, irrelevant, non-existent or extraneous material, the

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Court would be justified in interfering. In Khudiram Das v.
State of West Bengal, (1975) 2 SCC 81 , the Hon’ble
Supreme Court held that the subjective satisfaction of the
detaining authority is open to judicial review on the grounds of
mala fides , non-application of mind, reliance on irrelevant
material or exclusion of relevant material. Similarly, in Icchu
Devi Choraria v. Union of India, (AIR 1980 SC 1983) , the
Supreme Court emphasized that preventive detention laws
must be construed with utmost strictness since they directly
impinge upon personal liberty. The Court observed that:-
“…The court has always regarded personal
liberty as the most precious possession of
mankind and refused to tolerate illegal
detention, regardless of the social cost
involved in the release of a possible
renegade.
This is an area where the court has been
most strict and scrupulous in ensuring
observance with the requirements of the
law, and even where a requirement of the
law is breached in the slightest measure,
the court has not hesitated to strike down
the order of detention or to direct the
release of the detenue even though the
detention may have been valid till the
breach occurred...”
7. Perusal of the grounds of detention reveals that the main
material relied upon by the detaining authority pertains to FIR
No. 02/2014 and FIR No. 10/2015. Admittedly, the detention
order came to be passed on 15.07.2025. Except for general

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references to adverse reports, no contemporary or fresh
prejudicial activity attributable to the petitioner has been
brought on record. The law is no longer res integra that there
must exist a live and proximate nexus between the prejudicial
activities relied upon and the necessity of preventive
detention. In T.A. Abdul Rahman v. State of Kerala, (1989) 4
SCC 741
, the Hon’ble Supreme Court held that undue delay
or remoteness in passing a detention order may snap the live
and proximate link between past conduct and the purpose of
detention. The Court held as under:
“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.”
The Court further observed:-
“If there is undue and long delay between
the prejudicial activities and the passing of
the detention order, the court has to
scrutinize whether the subjective
satisfaction of the detaining authority was
genuinely arrived at.”
8. Applying the aforesaid principle to the facts of the present
case, this Court finds that the FIRs relied upon are of the
years 2014 and 2015, whereas the detention order has been
passed in the year 2025 after a decade. The material relied

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upon is, therefore, separated by nearly ten years from the
impugned action. Such remote antecedents, in the absence of
any fresh prejudicial conduct, cannot reasonably sustain the
subjective satisfaction necessary for preventive detention. In
Sama Aruna v. State of Telangana, (2018) 12 SCC 150 , the
Supreme Court held that stale criminal antecedents cannot
furnish a valid foundation for preventive detention unless there
exists proximate and compelling material connecting the
detenue’s conduct with the necessity for detention.
9. In Rekha v. State of Tamil Nadu, (2011) 5 SCC 244 , the
Supreme Court cautioned that preventive detention cannot be
employed as a substitute for ordinary criminal law and must
rest upon cogent, relevant and proximate material. It would be
advantageous to extract relevant portion from the said
judgment:-
“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

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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 detenue 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.”
10. In the present case, the respondents have asserted that the
dossier was based upon adverse reports and that the whole
material was supplied to the detenue. However, mere supply
of material does not cure the substantive illegality arising from
reliance upon stale grounds. The record does not disclose any
fresh incident, recent intelligence input or proximate prejudicial
conduct immediately preceding the issuance of the detention
order.
11. The chronology of events also assumes significance. The
detention recommendation is stated to have been made on
05.06.2025, whereas the detention order came to be passed

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on 15.07.2025. No satisfactory explanation for this delay has
been forthcoming from the respondents. In Anant Sakharam
Raut v. State of Maharashtra, (1987) 1 SCC 559 , the
Supreme Court held that unexplained delay may vitiate an
order of preventive detention where such delay erodes the
nexus between the alleged activity and the necessity to detain.
Equally relevant is the principle laid down in Ramesh Yadav
v. District Magistrate, Etah, (1985) 4 SCC 232 , wherein the
Supreme Court held that preventive detention cannot be
sustained on speculative apprehensions or in circumstances
where ordinary criminal law remedies are adequate.
12. Viewed thus, the detention order in question appears to be
founded upon old, stale and remote grounds without
disclosure of any fresh or compelling material. The absence of
recent prejudicial activity, coupled with the unexplained delay
and reliance upon decade-old antecedents, renders the
subjective satisfaction of the detaining authority legally
vulnerable.
13. This Court is, therefore, of the considered opinion that the
impugned detention order is founded upon stale and vague
grounds, bereft of any live and proximate nexus with the
object sought to be achieved through preventive detention.
The subjective satisfaction recorded by the detaining authority
stands vitiated on account of reliance upon remote material
and absence of fresh grounds.
14. Consequently, the present petition is allowed and the
Detention Order No. dated 15.07.2025
DIVCOM“K”/125/2025

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is held unsustainable in law and is, accordingly, quashed . The
petitioner/detenue shall be released forthwith provided he is
not required in connection with any other case(s).
15. Detention record is directed to be returned back to the learned
counsel for the respondents.
16. HCP No. 16/2026 is, thus, disposed of, in terms of the above,
along-with pending application(s).



( M. A. CHOWDHARY )
JUDGE
Srinagar
04.06.2026
Muzammil. Q

Whether the order is reportable: Yes / No