Preventive detention cannot rest on decades-old FIRs and family property disputes, J&K High Court rules

The petitioner, Mohd. Asgar @ Tola, through his wife, challenged detention order No. PSA 32 of 2023 dated 24.11.2023, issued by the District Magistrate, Jammu under Section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978, on the ground that he was acting prejudicially to the maintenance of public order.

The petitioner had earlier challenged the detention order at the pre-execution stage in HCP No. 130/2024, which was dismissed on 07.03.2025; his subsequent LPA was dismissed for non-prosecution on 20.05.2026.

The detention order, originally passed on 24.11.2023, was executed only on 23.04.2026.

The grounds of detention relied upon eight FIRs registered between 2002 and 2023.

The petitioner contended that the older FIRs were stale, while the later cases concerned family property disputes and had subsequently been quashed pursuant to compromises.

The respondents maintained that the petitioner had been absconding, that the delay in execution was attributable to him, and that the detention order was based on the detaining authority’s subjective satisfaction regarding the threat posed by his criminal activities.

1. Whether the detention order was founded on vague and mechanical grounds, merely relying upon registration of FIRs that did not disclose activities prejudicial to the maintenance of public order.

2. Whether the reliance on FIRs dating from 2002 to 2023 was stale and lacked a live and proximate link with the detention order passed in 2023.

3. Whether failure to clearly inform the detenue of his right to make an effective representation to the Government and the detaining authority violated Article 22(5) of the Constitution.

4. Whether the delayed execution of the detention order, after approximately two years, rendered the detention illegal.

The Court applied Section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978, under which preventive detention may be ordered to prevent a person from acting prejudicially to the maintenance of public order.

It distinguished “law and order” from “public order,” relying on K.K. Saravana Babu v. State of Tamil Nadu, (2008) 9 SCC 89, which holds that public-order cases involve conduct having the potential to disturb the peace and tranquillity or the even tempo of community life.

The Court further relied on Sama Aruna v. State of Telangana, (2018) 12 SCC 150, holding that past conduct can support preventive detention only where it has a live and proximate nexus with the likelihood of future prejudicial activity; stale incidents cannot sustain detention.

It also relied on Khaja Bilal Ahmed v. State of Telangana, (2020) 13 SCC 632, which reiterates that previous criminal cases may be considered only if they have a direct nexus with the immediate need for detention and that a mere reference to stale criminal cases is insufficient.

Article 22(5) of the Constitution requires that the detenue be communicated the grounds of detention and informed of the earliest opportunity to make an effective representation to the appropriate authorities.

The Court found that the eight FIRs relied upon by the detaining authority did not establish a continuing propensity to disturb public order.

The FIRs from 2002, 2011, 2012 and 2014 were too remote to constitute a live link with the detention order of 24.11.2023; in some cases, the petitioner had been acquitted or cleared during investigation, while one investigation had been stayed.

The FIRs from 2021 to 2023 arose from family or property disputes involving the petitioner’s cousins and were subsequently quashed on the basis of compromise.

Applying the principles in K.K. Saravana Babu, Sama Aruna and Khaja Bilal Ahmed, the Court held that the material did not demonstrate any act that disturbed, or had the potential to disturb, the even tempo of public life; at most, it disclosed isolated law-and-order disputes.

The detaining authority therefore failed to establish the necessary causal and proximate connection between the past incidents and the apprehended future threat.

On the representation ground, however, the Court held that the communication dated 24.11.2023 informed the detenue that he could make a representation to both the Government and the detaining authority, and accordingly no violation of Article 22(5) was established.

Although the parties advanced rival submissions regarding the delayed execution of the detention order, the operative basis of the decision was the absence of relevant, proximate and public-order-related material.

The Article 22(5) challenge was rejected because the detenue had been informed of his right to make representations to the Government and the detaining authority.

The detention order No. PSA 32 of 2023 dated 24.11.2023 was quashed, and the detenue was directed to be released forthwith, unless required in any other case; the detention record was ordered to be returned to the respondents.