Jammu & Kashmir High Court – Srinagar Bench
Irshad Ahmad Dar vs Ut Of Jammu And Kashmir on 21 April, 2025
S. No: 1
Supplementary List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 17/2023
Reserved on 20.02.2025.
Pronounced on: 21.04.2025
Irshad Ahmad Dar ..... Petitioner(s)
Through: Mr. B.A. Tak, Advocate.
vs.
UT of Jammu and Kashmir
and Others ....Respondents
Through: Mr. Mubashir Majid Malik, Dy. AG.
CORAM:
HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
JUDGMENT
1. Impugned in the instant petition, filed under the provisions of Article 226
of the Constitution of India, by the petitioner through his father, is the order
of detention bearing No. 47/DMB/PSA/2023 dated: 21.07.2023 passed by
the respondent No. 2 i.e., the District Magistrate Baramulla (hereinafter
referred to as the Detaining Authority for short), while invoking his powers
under Section 8(1)(a)(i) of the Jammu and Kashmir Public Safety Act, 1978
(hereinafter referred to as the Act, for short), whereby the petitioner-detenu
has been ordered to be detained, with a view to prevent him from acting in
any manner pre-judicial to the security of the state, for a period to be
specified by the Government and lodged in the Central Jail, Srinagar.
2. The petitioner has sought the issuance of writs/directions in the nature of
certiorari and mandamus for quashment of the impugned detention order
and his immediate release from the alleged unlawful custody.
3. The order impugned has been assailed on the grounds, inter-alia, that the
petitioner as well as his father are the domiciles of the UT of Jammu and
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Kashmir and citizens of India, thus, having a legal right to approach this
Court for seeking the redressal of their grievances and protection of their
rights under law; that the copies of the order and grounds of detention have
not been supplied to the petitioner-detenu and it was only due to the personal
hard efforts of the petitioner’s family members that they could lay hands on
the copies of said documents and that too on 01.08.2023; that the impugned
order was passed when the petitioner-detenu was already in custody of the
police and no information about the order of detention was given to him;
that the petitioner-detenu was involved in the alleged FIR No. 104/2023
under Section 13 of the Unlawful Activities Prevention Act, (UAPA), 506
IPC, of Police Station Sopore and he had not filed any bail application in
the said case FIR, meaning thereby that there was no likelihood of his
immediate release in the case, that the earlier preventive detention order
against the petitioner on the similar allegations bearing No.
142/DMB/PSA/2019, dated 30.03.2019 was quashed by this Court on HCP
No. 161/2019 c/w HCP No. 160/2019 decided on 27.12.2019; that the non-
supply of the copies of the detention record and other documents has
violated the constitutional right of the petitioner-detenu as guaranteed under
Article 22(5) of the Constitution; that the grounds of detention constitute the
replica/ditto of the police dossier and as such the detaining authority
appears to have not applied his mind before issuing the impugned detention
order; that the petitioner-detenu by not furnishing with the copies of the
detention record at an earliest was prevented from making an earliest
representation to the detaining authority or to the Government and the
passing of the impugned order appears to have been chosen by the
respondents as a shortcut measure for their own convenience at the cost of
the precious and valuable constitutional rights of the petitioner.
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4. The respondents through the counter affidavit filed by the respondent No.
2, i.e. the detaining authority, resisted the instant petition on the grounds
that same is not maintainable as being devoid of any cause of action because
none of the legal, statutory or fundamental rights of the petitioner appear to
have been infringed by the respondents. That the provisions of Article 22(5)
of the Constitution of India and Section 13 of the Act were fully complied
with as the grounds of detention were communicated to the petitioner-
detenu immediately upon his arrest in pursuance of the detention order. That
the petitioner-accused being a hard-core Over Ground Worker (OGW) of
HM Outfit was providing logistic support to the local/foreign terrorists of
HM and was also instigating/motivating the youth of Zainageer Sopore for
joining militancy. That two case FIR Nos’. 10/2019 of PS Bomai and
104/2023 of PS Sopore were registered against the petitioner and another.
That the detention order was passed upon the application of mind by the
detaining authority who, on the basis of the police dossier and other inputs
was convinced that the preventive detention of the petitioner is imperative
with a view to prevent him from indulging in any act pre-judicial to the
security of the state. That the detention warrant was executed on 22.07.2023
with the arrest of the petitioner who was handed-over to the Assistant
Superintendent, Central Jail, Srinagar and was informed about the grounds
of detention. That the detention order was also approved by the Government
and the finding of the learned Advisory Board supported the detention order
whereafter the Government Home Department determined the initial period
of the detention of the petitioner-accused as Six (6) Months. That the
grounds of detention are precise, proximate, pertinent and relevant. That the
grounds of detention sufficiently connect the detenu with the activities
which, on the face of it, are highly pre-judicial to the security of the state.
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That even the grant of bail in a criminal offence cannot debar the detaining
authority to order preventive detention of an individual whose such
detention has become imperative in the interest of security of the state.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the petitioner-detenu while reiterating his stand
taken in his petition contended that the order impugned is not sustainable
under law as the same suffers from patent illegality and perversity. That the
grounds of detention are just a replica of the police dossier and, as such, the
impugned detention order is devoid of the application of mind on the part
of the detaining authority. That the procedural safeguards mandated under
Article 22(5) of the Constitution read with Section 13 of the Act have been
observed in breach by the detaining authority. That the copies of the
detention order and other documents basing the same were not furnished to
the petitioner-detenu immediately upon his arrest and the family members
of the petitioner due to their personal efforts could lay their hands on the
copies of detention record on 01.08.2023. That the petitioner-accused has
already suffered preventive detention ordered by the respondent No. 2 vide
order No. 142/DMB/PSA/2019, dated 30.03.2019 on the similar alleged
grounds, which came to be quashed by this Court vide order dated
27.12.2019, that the petitioner-accused has already been released on bail in
case FIR No. 10/2019 of Police Station Bomai. He further contended that
after the release of the petitioner-detenu in case FIR No. 10/2019 of PS
Bomai, the impugned detention order was slapped on him so as to keep him
continuously under detention and was not released from custody pursuant
to the aforesaid bail order dated 04.07.2023. He also contended that the fresh
case FIR No. 104/2023 under Section 13 of the Unlawful Activities
Prevention Act, (UAPA), 506 IPC of Police Station Sopore was
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manipulated only to justify the impugned detention order as the petitioner-
accused already being in Central Jail, Srinagar, cannot be believed to be
allowed by the prison authorities to indulge in alleged illegal activities.
7. Per-contra, the learned UT Counsel for the respondents vehemently
submitted that the detaining authority was compelled to invoke the
provisions of the Act and to detain the petitioner-detenu whose activities
were highly pre-judicial to the security of the state and, as such, his
apprehended release was seriously viewed in the light of the security of the
state. He contended that the petitioner-detenu was a hard-core Over Ground
Worker (OGW) who was providing logistic support to the terrorists of the
HM Outfit and, as such, there was every apprehension on the basis of the
reliable inputs that his release may prove seriously pre-judicial to the
interest of the security of the state. He also contended that the copies of the
detention order and other records were furnished to the petitioner in due
time enabling him to make a representation to the Government in respect of
his detention. The learned State Counsel further contended that the detenu
was heard by the learned Advisory Board. The learned UT Counsel prayed
for the dismissal of the writ petition.
8. I have perused the record of the instant petition and the copies of documents
enclosed with the same. The counter affidavit filed by the detaining
authority has also been perused.
9. I have also gone through the xerox copy of the detention record produced
by the learned UT Counsel.
10. Keeping in view the aforesaid perusal and the consideration of the rival
arguments advanced on both the sides, in the light of the law on the subject,
this Court is of the opinion that the impugned detention order suffers from
illegality and incorrectness, thus deserves its quashment.
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11. It is borne out from the record of the petition in hand as well as from the
detention record, that the petitioner-detenu was earlier also kept under
preventive detention pursuant to the order bearing No.
142/DMB/PSA/2019, dated 30.03.2019 issued by the respondent No. 2
which came to be challenged before this Court through the writ petition
bearing No. HCP No. 161/2019 and was quashed by this Court vide order
dated 27.12.2019 passed on the said petition. The Case FIR No. 10/2019
registered with Police Station Bomai, was the main basis of the said earlier
detention order and the petitioner-detenu was released on bail by the
competent Court in the said case FIR, as itself admitted by the detaining
authority in the grounds of detention. Immediately after the petitioner-
accused was admitted to bail in the said case FIR No. 10/2019 of Police
Station Bomai by the competent Court on 04.07.2023, the respondents
proceeded to pass the impugned detention order only two weeks thereafter
i.e. on 21.07.2023. The impugned detention order dated 21.07.2023 appears
to have been passed on almost the similar grounds of the earlier detention
order dated 30.03.2019. The reference of the registration of the case FIR
No. 10/2019 of PS Bomai Sopore was made in the earlier detention order as
the main basis for passing of the same. The registration of the case FIR No.
104/2023 under Section 13 of the Unlawful Activities Prevention Act,
(UAPA), 506 IPC of PS Bomai Sopore has come into being whilst the
petitioner-detenu was in custody and lodged in the Central Jail, Srinagar.
12. The grounds of detention appear to be the replica of the police dossier which
leads to an inference that the learned Detaining Authority has not applied
its mind before passing the impugned order. Since the preventive detention
of a person is without a supporting FIR or a criminal complaint, as such, the
preventive detention orders need to be passed with great care and caution
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upon proper application of mind as the detenu under such circumstances has
a limited defense.
13. This Court in its opinion is fortified with the law laid down by the Hon’ble
Supreme Court of India in “Jahangirkhan, Fazalkhan Pathan vs. Police
Commissioner Ahmedabad and Another (1989) 0 Supreme(SC) 367″,
“Abdul Latif Abdul Wahab Sheikh vs. B.K. Jha (1987) 2 SCC 22″ and
in “Chhagan Bhagwan Kahar Vs. N.L. Kalna 1989 1 JT 572″ to the
effect, “it is clear that an order of detention cannot be made after
considering the previous grounds of detention when the same had been
quashed by the Court and if such previous grounds of detention are taken
into consideration while forming the subjective satisfaction by the
detaining authority in making the detention order, the said detention order
will be vitiated. That it is of no consequence if the further fresh facts
disclosed in the grounds of impugned detention order have been
considered.”
14. The preventive detentions need to be passed with great care and caution
keeping in mind that a citizen’s 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 without being backed by an immediate complaint as in the case of
the registration of the FIR 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 requiring for
application of mind, subjective satisfaction, inevitability of the detention
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order, proper 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 requirements for passing
of a detention order.
15. The Hon’ble Supreme Court in case “Rekha Vs. State of Tamil Nadu
through Secretary to Government and another”, reported in (2011) 5
SCC 244 has laid emphasis on the fundamental right to life and personal
liberty of a citizen of India guaranteed under Article 21 of our Constitution
and has, accordingly, stressed for taking great care and caution while
passing any preventive detention orders so that same are issued in case of
genuine and inevitable need only without any misuse or abuse of the powers.
The relevant provisions of the said authoritative judgment are reproduced
as hereunder: –
“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 (Indian Penal Code
and other penal statutes) can deal with a situation, recourse to a
preventive detention law will be illegal.
35. It must be remembered that in cases of preventive detention
no offence is proved and the justification of such detention is
suspicion or reasonable probability, and there is no conviction
which can only be warranted by legal evidence. Preventive
detention is often described as a ‘jurisdiction of suspicion’, (Vide
State of Maharashtra Vs. Bhaurao Punjabrao Gawande. The
detaining authority passes the order of detention on subjective
satisfaction. Since clause (3) of Article 22 specifically excludes
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the applicability of clauses (1) and (2), the detenu is not entitled
to a lawyer or the right to be produced before a Magistrate
within 24 hours of arrest. To prevent misuse of this potentially
dangerous power the law of preventive detention has to be
strictly construed and meticulous compliance with the
procedural safeguards, however, technical, is, in our opinion,
mandatory and vital.
36. It has been held that the history of liberty is the history of
procedural safeguards. (See: Kamleshkumar Ishwardas Patel
Vs. Union of India and others). These procedural safeguards are
required to be zealously watched and enforced by the court and
their rigour cannot be allowed to be diluted on the basis of the
nature of the alleged activities of the detenu. As observed in
Rattan Singh Vs. State of Punjab, (1981) 4 SCC 1981: –
“4. May be that the detenu is a smuggler whose tribe (and how
their numbers increase!) deserves no sympathy since its
activities have paralysed the Indian economy. But the laws of
preventive detention afford only a modicum of safeguards to
persons detained under them, and if freedom and liberty are to
have any meaning in our democratic set-up, it is essential that at
least those safeguards are not denied to the detenus.
“39. Personal liberty protected under Article 21 is so sacrosanct
and so high in the scale of constitutional values that it is the
obligation of the detaining authority to show that the impugned
detention meticulously accords with the procedure established
by law. The stringency and concern of judicial vigilance that is
needed was aptly described in the following words in Thomas
Pelham Dale’s case, (1881) 6 QBD 376:
“Then comes the question upon the habeas corpus. It is a
general rule, which has always been acted upon by the Courts
of England, that if any person procures the imprisonment of
another he must take care to do so by steps, all of which are
entirely regular, and that if he fails to follow every step in the
process with extreme regularity the court will not allow the
imprisonment to continue.”
16. In the case of “Francis Coralie Mullin Vs Administrator, Union
Territory of Delhi and others,” reported in (1981) SCC 608, it has been
inter alia authoritatively laid down: –
“4. Now it is necessary to bear in mind the distinction
between ‘preventive detention’ and punitive detention’, when we
are considering the question of validity of conditions of
detention. There is a vital distinction between these two kinds
of detention. ‘Punitive detention’ is intended to inflict
punishment on a person, who is found by the judicial process to
have committed an offence, while ‘preventive detention’ is not
by way of punishment at all, but it is intended to pre-empt a
person from indulging in conduct injurious to the society. The
power of preventive detention has been recognized as a
necessary evil and is tolerated in a free society in the larger
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interest of security of the State and maintenance of public order.
It is a drastic power to detain a person without trial and there are
many countries where it is not allowed to be exercised except in
times of war or aggression. Our Constitution does recognize the
existence of this power, but it is hedged-in by various
safeguards set out in Articles 21 and 22. Art. 22 in clauses (4)
to (7), deals specifically with safeguards against preventive
detention and any law of preventive detention or action by way
of preventive detention taken under such law must be in
conformity with the restrictions laid down by those clauses. But
apart from Art. 22, there is also Art. 21 which lays down
restrictions on the power of preventive detention. Until the
decision of this Court in Maneka Gandhi. v. Union of India, a
very narrow and constricted meaning was given to the guarantee
embodied in Art. 21 and that article was understood to embody
only that aspect of the rule of law, which requires that no one
shall be deprived of his life or personal liberty without the
authority of law. It was construed only as a guarantee against
executive action unsupported by law. So long as there was some
law, which prescribed a procedure authorising deprivation of
life or personal liberty, it was supposed to meet the requirement
of Art. 21. But in Maneka Gandhi’s case (supra), this Court for
the first time opened-up a new dimension of Art. 21 and laid
down that Art. 21 is not only a guarantee against executive
action unsupported by law, but is also a restriction on law
making. It is not enough to secure compliance with the
prescription of Article 21 that there should be a law prescribing
some semblance of a procedure for depriving a person of his life
or personal liberty, but the procedure prescribed by the law must
be reasonable, fair and just and if it is not so, the law would be
void as violating the guarantee of Art. 21. This Court expanded
the scope and ambit of the right to life and personal liberty
enshrined in Art. 21 and sowed the seed for future development
of the law enlarging this most fundamental of Fundamental
Rights. This decision in Maneka Gandhi’s case became the
starting point-the-spring board-for a most spectacular evolution
the law culminating in the decisions in M. H. Hoscot v. State of
Maharashtra, Hussainara Khatoon’s case, the first Sunil Batra’s
case and the second Sunil Batra’s case. The position now is that
Art. 21 as interpreted in Maneka Gandhi’s case (supra) requires
that no one shall be deprived of his life or personal liberty except
by procedure established by law and this procedure must be
reasonable, fair and just and not arbitrary, whimsical or fanciful
and it is for the Court to decide in the exercise of its
constitutional power of judicial review whether the deprivation
of life or personal liberty in a given case is by procedure, which
is reasonable, fair and just or it is otherwise. The law of
preventive detention has therefore now to pass the test not only
of Art. 22, but also of Art. 21 and if the constitutional validity
of any such law is challenged, the Court would have to decide
whether the procedure laid down by such law for depriving a
person of his personal liberty is reasonable, fair and just. But
despite these safeguards laid down by the Constitution and
creatively evolved by the Courts, the power of preventive10 | 1 7
detention is a frightful and awesome power with drastic
consequences affecting personal liberty, which is the most
cherished and prized possession of man in a civilized society. It
is a power to be exercised with the greatest care and caution and
the courts have to be ever vigilant to see that this power is not
abused or misused. It must always be remembered that
preventive detention is qualitatively different from punitive
detention and their purposes are different. In case of punitive
detention, the person concerned is detained by way of
punishment after he is found guilty of wrong doing as a result
of trial where he has the fullest opportunity to defend himself,
while in case of preventive detention, he is detained merely on
suspicion with a view to preventing him from doing harm in
future and the opportunity that he has for contesting the action
of the Executive is very limited. Having regard to this
distinctive character of preventive detention, which aims not at
punishing an individual for a wrong done by him, but at
curtailing his liberty with a view to pre-empting his injurious
activities in future.”
17. In the case of “Nand Lal Bajaj Vs State of Punjab and another,”
reported in (1981) 4 SCC 327, the Hon’ble Supreme Court has stated the
position as under: –
“9. Among the concurring opinions, Krishna Iyer, J., although
he generally agreed with Bhagwati, J., goes a step forward by
observing: Procedural safeguards are the indispensable essence
of liberty. In fact, the history of procedural safeguards and the
right to a hearing has a human-right ring. In India, because of
poverty and illiteracy, the people are unable to protect and
defend their rights: observance of fundamental rights is not
regarded as good politics and their transgression as bad politics.
In short, the history of personal liberty is largely the history of
procedural safeguards. The need for observance of procedural
safeguards, particularly in cases of deprivation of life and
liberty is, therefore, of prime importance to the body politic.”
18. This Court in cases titled “Naba Lone Vs. District Magistrate, 1988 SLJ
300″ and “Mohd. Farooq through Mohd. Yousuf Vs. UT of J&K and
others, WP (Crl) No. 17/2023″, decided on 03.09.2024 has laid down the
law to the effect, “the grounds of detention supplied to the detenu is a copy
of dossier, which was placed before the District Magistrate for his subjective
satisfaction in order to detain the detenu. This shows total non-application
of mind on the part of the Detaining Authority as he has dittoed the Police
directions without applying his mind to the facts of the case.”
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19. In the facts and circumstances of the case, this Court is of the opinion that
the impugned detention order has been passed by the detaining authority
without proper application of mind. The detaining authority appears to have
followed the dossier of the police concerned in verbatim. There also appears
to be no proximate or live link between the last case FIR bearing No.
104/2023 and the impugned detention order dated 21.07.2023.
20. The Hon’ble Apex Court in case titled “Jai Singh and ors. Vs. State of J&K”,
AIR 1985 SC 764 decided on 24.01.1985 has laid down the law, relevant
portion whereof is reproduced as under: –
“First taking up the case of Jai Singh, the first of the petitioners
before us, a perusal of the grounds of detention shows that it is
a verbatim reproduction of the dossier submitted by the Senior
Superintendent of Police, Udhampur, to the District Magistrate
requesting that a detention order may kindly be issued. At the
top of the dossier, the name is mentioned as Sardar Jai Singh,
father’s name is mentioned as Sardar Ram Singh and the address
is given as village Bharakh, Tehsil Reasi. Thereafter it is recited
“The subject is an important member of ……” Thereafter follow
various allegations against Jai Singh, paragraph by paragraph. In
the grounds of detention, all that the District Magistrate has
done is to change the first three words “the subject is” into “you
Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil
Reasi”. Thereafter word for word the police dossier is repeated
and the word “he” wherever it occurs referring to Jai Singh in
the dossier is changed into “you” in the grounds of detention.
We are afraid it is difficult to find greater proof of non-
application of mind. The liberty of a subject is a serious matter
and is not to be trifled with in this casual, indifferent and routine
manner.”
21. The Hon’ble Apex Court also inter alia laid down in case titled “Rameshwar
Shaw Vs. District Magistrate, Burdwan and another“, AIR 1964 SC, 334 as
under: –
“In deciding the question as to whether it is necessary to detain
a person, the authority has to be satisfied that the said person if
not detained may act in a prejudicial manner and this conclusion
can be reasonably reached by the authority generally in light of
evidence about past prejudicial activities of the said person.
When evidence is placed, the Detaining Authority has to
examine the said evidence and decide whether it is necessary to
detain the said person in order to prevent him from acting in a12 | 1 7
prejudicial manner. Thus, it was held that the past conduct or
antecedent history of a person can be taken into account in
making the detention order and it is largely from prior events
showing tendencies or inclinations of a man that an inference
could be drawn whether he is likely even in the future to act in
a manner prejudicial to the maintenance of public order. Further
the past conduct or history of the person on which the authority
purports to act should ordinarily be proximate in point of time
and should have the rational connection with the conclusion
that the detention of the person is necessary, that it would be
irrational to take into account the conduct of a person which
took the place years before the date of detention”.
22. In Rajammal v. State of Tamil Nadu and others, 1999(1) SCC 417, it has
been held as follows:-
“It is a constitutional obligation of the Government to
consider the representation forwarded by the detenu without
any delay. Though no period is prescribed by Article 22 of the
Constitution for the decision to be taken on the
representation, the words “as soon as may be” in clause (5) of
Article 22 convey the message that the representation should
be considered and disposed of at the earliest.”
23. In K. M. Abdulla Kunhi v. Unio of India (1991) 1 SCC 476, it has been held
as follows: –
“…. it is settled law that there should not be supine
indifference, slackness or callous attitude in considering the
representation. Any unexplained delay in the disposal of the
representation would be breach of the constitutional
imperative and it would render the continued detention
impermissible and illegal.”
24. In Shalini Soni Vs. Union of India (1980) 4 SCC 544: 1981 SCC (Ori) 38, the
Hon’ble Apex Court has laid down as under: –
“The Article 22 (5) has two facets : (1) communication of the
grounds on which the order of detention has been made; (2)
opportunity of making a representation against the order of
detention. Communication of the grounds pre-supposes the
formulation of the grounds and formulation of the grounds
requires and ensures the application of the mind of the
detaining authority to the facts and materials before it, that is
to say to pertinent and proximate matters in regard to each
individual case and excludes the elements of arbitrariness and
automatism (if one may be permitted to use the word to
describe a mechanical reaction without a conscious application
of the mind). It is an unwritten rule of the law, constitutional
and administrative, that whenever a decision making function
is entrusted to the subjective satisfaction of a statutory13 | 1 7
functionary, there is an implicit obligation to apply his mind to
pertinent and proximate matters only eschewing the irrelevant
and the remote. Where there is further an express statutory
obligation to communicate not merely the decision but the
grounds on which the decision is founded. It is a necessary
corollary that the grounds communicated, that is, the grounds
so made known, should be seen to pertain to pertinent and
proximate matters and should comprise all the constituent
facts and materials that went in to make up the mind of the
statutory functionary and not merely the inferential
conclusions. Now, the decision to detain a person depends on
the subjective satisfaction of the detaining authority. The
Constitution and the statute cast a duty on the detaining
authority to communicate the grounds of detention to the
detenu. From what we have said above, it follows that the
grounds communicated to the detenu must reveal the whole
of the factual material considered by the detaining authority
and not merely the inferences of fact arrived at by the
detaining authority. The matter may also be looked at from the
point of view of the second facet of Article 22(5). An
opportunity to make a representation against the order of
detention necessarily implies that the detenu is informed of all
that has been taken into account against him in arriving at the
decision to detain him. It means that the detenu is to be
informed not merely, as we said, of the inferences of fact but
of all the factual material which have led to the inferences of
fact. If the detenu is not to be so informed the opportunity so
solemnly guaranteed by the Constitution becomes reduced to
an exercise in futility. Whatever angle from which the question
is looked at, it is dear that “grounds” in Article 22(5) do not
mean mere factual inferences but mean factual inferences plus
factual material which led to such factual inferences. The
‘grounds’ must be self-sufficient and self-explanatory. In our
view copies of documents to which reference is made in the
‘grounds’ must be supplied to the detenu as part of the
‘grounds’.”
25. The preventive detentions need 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 an
14 | 1 7
immediate complaint as in the case of the registration of the FIR 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.
26. The petitioner-detenu as reported by the respondents is involved in two case
FIR No’s. 10/2019 of Police Station Bomai and 104/2023 of Police Station
Sopore. He has been released on bail in the first Case FIR No. 10/2019. It is
not the case of the respondents that they being aggrieved of the bail order
favouring the petitioner-detenu in the earlier case FIR No. 10/2019 of PS
Bomai had thrown a challenge to the same. The respondents have not
convinced this Court as to how the normal criminal law is inadequate in the
case of the petitioner to deal with him. The earlier case FIR No. 10/2019 of
Police Station Bomai appears to have no proximity with the impugned
detention order.
27. 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 criminal15 | 1 7
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.”
28. 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.”
29. It is needful to mention that while ordering a preventive detention, the
alleged past history of an individual cannot be always considered and
apprehended in the perspective of the same past guilty mind of the
individual, save under some exceptional circumstances evidenced by
the fresh incriminating material/data, but the same is required to be
subsequently understood and considered with the probability of the
individual having changed his mindset for living as a law abiding citizen
in future.
30. Thus, while summarizing the observations of the Court, it appears that the
grounds of detention basing the impugned order, being the replica of the
police dossier are bereft of the application of mind on the part of the
detaining authority displaying a casual approach in respect of the most
cherished fundamental right of the detenu guaranteed under Article 21 of
the Constitution of our country. The grounds of detention also appear to be
the same which were the subject matter of the earlier detention order in
respect of the petitioner-detenu bearing No. 142/DMB/PSA/2019, dated
30.03.2019.
16 | 1 7
31. It appears that the petitioner-detenu is still as an under-trial in the Case FIR
No. 104/2023 of Police Station, Bomai in which he has not been bailed out.
32. For the foregoing discussion, the petition is allowed and the impugned
detention order bearing no. 47/DMB/PSA/2023 dated: 21.07.2023 issued by
the respondent No. 2, i.e. learned District Magistrate, Baramulla, is quashed
and the detenu is directed to be released from his preventive detention under
aforesaid order having been quashed. The Xerox copy of the detention
record is directed to be returned back to the office of the learned Deputy
Advocate General, concerned.
33. Disposed of
(Mohd Yousuf Wani)
Judge
Srinagar
21/04/2025
“Shahid-SS”
Whether the Judgment is speaking: Yes/No
Whether the Judgment is reportable: Yes/No17 | 1 7
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