Jammu & Kashmir High Court – Srinagar Bench
Abdul Rashid Sheikh vs Ut Of J&K on 27 May, 2025
Supple 1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 6th March, 2025
Pronounced on: 27.05.2025
HCP No. 107/2024
Abdul Rashid Sheikh ...Petitioner(s)
s/o Ali Mohammad Sheikh
R/oLalpora, kralkhal,
Tehsil Kunzer District Baramulla
Through Ghulam Rasool Sheikh his brother.
Through: Mr. B. A. Dar, Advocate.
vs.
1.UT of J&K, through Principal Secretary to Govt.
(Home) Department Civil Sectt. Srinagar,
2.District Magistrate Baramulla,
...Respondents.
3. Senior Superintendent of Police, Baramulla,
4. Superintendent District Jail, Udhampur.
Through: Mr. Mubashir Malik, Dy. AG.
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 the Constitution of India, is the order of detention
Page 1 of 25 HCP No. 107/2024
bearing No. 14/DMB/PSA/2024 dated 4th April, 2024,
issued by the respondent No. 2 i.e. District Magistrate,
Baramulla (hereinafter referred to as the Detaining
Authority for short), in exercise of its powers vested under
Section 8 (1) (a) (i) of the Jammu and Kashmir Public
Safety Act, 1978 whereby the petitioner/detenu was
ordered to be detained and lodged in the District Jail
Udhampur for a period to be specified by the Government,
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 petitioner/detenu was
arrested by the Police Station, Kunzar, on 24th December,
2021 from his home and after keeping him in unlawful
detention, was falsely implicated in case FIR No. 18/2022
of PS Kunzar under Sections 13 and 39 of Unlawful
Activities (Prevention) Act, 1967 (hereafter referred to as
“ULA (P) Act” for short); that subsequently the charge sheet
i.e. final police report came to be filed before the competent
court i.e. Designated Special Court under ULA (P) Act,
Page 2 of 25 HCP No. 107/2024
Baramulla (Hereinafter to as the Trial Court for short); that
the petitioner/detenu during the investigation of the case
FIR remained firstly in the police custody during the police
remand and thereafter in the District Jail, Baramulla,
during the period of judicial remand and as an undertrial;
that the learned Trial Court admitted the petitioner/detenu
to bail in the said case FIR vide his order dated 13 th March,
2024 passed on the bail application; that subsequent to
the release of the petitioner/detenu on 14th March, 2024,
pursuant to the bail order dated 13th March, 2024, he was,
however, called by the SHO Police Station, Kunzar to his
police station just only after three days, who accordingly
appeared before the SHO on the same day, but was
detained in the police station and later booked under the
provisions of the Jammu and Kashmir Public Safety Act,
1978 (hereinafter referred to as “PSA” for short), vide
impugned detention order dated 4th April, 2024, issued by
the learned Detaining Authority and lodged in the District
Jail, Udhampur; that the petitioner/detenu was not
furnished the copy of the communication alleged to have
been furnished by the respondent No. 3 to the respondent
No. 2, as well as the copies of grounds of detention, basing
the impugned order, thereby preventing him from making
an earliest representation before the learned Detaining
Authority as well as the Government; that the grounds of
detention have mainly been based on the registration of
Page 3 of 25 HCP No. 107/2024
case FIR No. 18/2022 of PS Kunzar against the petitioner/
detenu, in which he was admitted to bail on 13th March,
2024 by the learned Trial Court, but was picked up by the
police concerned only after three days of his release in the
case FIR and detained by virtue of impugned detention
order; that although the petitioner/detenu was informed
about the impugned detention order, but he was not
informed as to by which time he has a right to make a
representation to the learned Detaining Authority and to
the Government; that neither the copy of the FIR nor the
copies of the statements of witnesses recorded during the
investigation of the said FIR were furnished to the
petitioner/detenu, so as to enable him to make an effective
representation against his detention; that the learned
Detaining Authority was under an obligation to furnish
translated copies of the FIR and the statement 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
an Over Ground Worker (OGW) of any banned outfit, nor
has he ever carried out any anti-national activity; that the
petitioner/detenu has never provided any logistic support
to any terrorists or any of their associates; that the
Page 4 of 25 HCP No. 107/2024
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 PSA; 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 respondents through their reply affidavit
filed by the learned Detaining Authority, have resisted the
instant petition on the ground that, same is not
maintainable as none of the legal or constitutional rights of
the petitioner/detenu stand violated. That the
petitioner/detenu has not approached this Court with
clean hands, as the petition has been filed on baseless and
untrue grounds. That the detention order has been passed
by the learned Detaining Authority in exercise of its powers
vested under Section 8 (1) (a) (i) of the PSA, in order to
prevent the petitioner/detenu from acting in any manner
prejudicial to the security of the State, as there was
sufficient material against him, suggesting his at large
Page 5 of 25 HCP No. 107/2024
being prejudicial to the interests of security of the State.
That the detention order impugned in the petition has been
passed on the subjective satisfaction and upon application
of mind by the learned Detaining Authority. That
preventivedetention is designed to protect the society and
the fundamental concept of the preventive detention is to
prevent an individual from indulging in any action in
future, which may prove detrimental to the security of the
State. That the detention order was passed on a reasonable
prediction of future behavior, considering the
petitioner/detenu’s past conduct in the light of the
surrounding circumstances. 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 asubjective
satisfaction for placing the petitioner/detenu under the
preventive detention. That the petitioner/detenu indulged
in various anti-national activities, which facilitated the
strengtheningof the network of the LeT/TRF and carrying
out of anti-national/anti-social activities on the 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
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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. 18/2022 under Section
13 and 39 ULA (P) Act, 121 RPC of Police Station Kunzar.
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.
The learned Detaining Authority in its reply
affidavit has also placed reliance on the authoritative
judgments of the Hon’ble Apex Court delivered in
“Hardhan Saha vs State of West Bengal (1975) 3 SCC
198; Gautam Jain vs Union of India & Anr 2017 (1)
J&K Law Times Vol. 1 (SC) P.1; Maneka Gandhi vs
Union of India, 1978 AIR SC 597; and State of
Bombay vs Atma Ram Shridhar Vaidya AIR 1951 SC
157.”
5) I have heard the learned counsel for the
petitioner Mr. B. A. Dar, Advocate and Mr. Mubashir Malik,
learned Deputy Advocate General for the respondents.
6) Learned counsel for the petitioner while
reiterating his stand taken by him as per the averments of
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the petition, contended thatthe petitioner/detenu is
innocent and has never been involved in the alleged
activities. That the petitioner/detenu has never been an
OGW of 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 No. 18/2022 by the Police
Station, Kunzar. That the learned Trial Court granted him
bail in the case FIR on 13th March, 2024, whereafter he
was called to the Police Station, Kunzar, after three days of
his release in the said case FIR and was again detained
under the garb of the impugned detention order dated
4thApril, 2024.
That the same case FIR bearing No. 18/2022
registered with Police Station, Kunzar, in which the
petitioner/detenu was released on bail by the competent
Trial Court on 13th March, 2024, has been made the main
basis for passing of the impugned detention order. He
further contended that the case FIR No. 18/2022 was
investigated for the commission of the alleged offences
punishable under Section 13 and 39 of the ULA(P) Act and
the final police report/charge sheet was also produced by
the police concerned before the competent Trial Court, in
which the petitioner/detenu was granted bail on 13th
March, 2024. The learned counsel for the petitioner further
contended that since offence under Section 39 ULA(P) Act
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falling under Chapter VI of the ULA(P) Act attracted the bar
under the provisions of Section 43 (D) (5) of the Act, as
such, it is understood that the competent Trial Court
granted the concession of bail to the petitioner/detenu for
the said offence along with the offence punishable under
Section 13 of the Act 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 livelink or proximity between the
alleged act of the petitioner/detenu dated 10th February,
2022 leading to the registration of case FIR No. 18/2022 of
PS Kunzar and the need for issuance of the impugned
detention order dated 4th April, 2024, having a gap of more
than two years. He also contended that since his arrest in
the case FIR No. 18/2022 on 10th February, 2022, the
petitioner/detenu remained continuously under detention
in the said case FIR, until he was released on 14th March,
2024 in pursuance to bail order dated 13th March, 2024
and was again called to the police station after three days
of his release and detained under the impugned detention
order dated 4th April, 2024. The learned counsel also
contended that the charge against the petitioner/detenu as
per case FIR No. 18/2022 of PS Kunzar, is totally baseless
and fabricated, as no objectionable posters came to be
recovered pursuant to his disclosure and identification,
which fact is clear from the evidence recorded at the trial
Page 9 of 25 HCP No. 107/2024
of the case FIR No. 18/2022 of PS, Kunzar, pending
disposal before the learned Trial Court.
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 case was pending trial
against the petitioner/detenu, there was no justification for
his preventive detention in parallel and the respondents
even if aggrieved, could have assailed the bail order, 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 Anr,
WP(Crl) No. 06/2021 decided on 15th July, 2022;
Imtiyaz Ahmad Chikla vs Union Territory of J&K and
Anr, WP (Crl) No. 150/2021, decided on 18th July,
2022; and Sajjid Zahoor Khan vs Union Territory of
J&K and Anr, WP(Crl) No. 35/2023, decided on 25th
August, 2023.”
Page 10 of 25 HCP No. 107/2024
While placing reliance on the aforesaid
judgments of this Court, the learned counsel for the
petitioner/detenu submitted that it has been held in WP
(Crl) No. 06/2021 and WP (Crl) No. 150/2021 cited supra
that, “An order of preventive detention becomes
unsustainable in law, if the detenuhas not been
provided with all the material that has formed the
basis of detention.”
The learned counsel for the petitioner prayed for
setting aside of the impugned order of detention and
release of the petitioner/detenu.
7) Per contra, the learned counsel representing the
respondents Mr. Mubashir Malik, learned Deputy
Advocate General also reiterated his stated 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 PSA,
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 maintenance
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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 were carrying
out anti-national activities including transportation of
terrorists and providing shelter to them. It was also
contended by the learned Deputy Advocate General that
the learned Advisory Board constituted under Section 14 of
the PSA on reference, examined the case against the
petitioner/detenu and made its opinion as conveyed vide
order dated 22nd April, 2024 that the preventive detention
of the petitioner/detenu appears 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 PSA
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.
The learned UT counsel further contended that it is
admitted by the learned counsel for the petitioner that the
petitioner/detenu was apprised that he has a right to make
a representation to the Government in respect of his
Page 12 of 25 HCP No. 107/2024
detention. He contended that even the grant of bail in
criminal offence cannot debar the 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 petitioner/detenu’s past conduct and
likelihood of his repetition of the same.
The learned UT counsel while placing reliance on
the authoritative judgment of the Hon’ble Apex Court cited
as “Hardhan Saha vs State of West Bengal (1975) 3
SCC 198″submitted that it has been observed in the said
case 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 basis of his reliance placed on the case
titled as “Gautam Jain vs Union of India & Anr 2017
(1) J&K Law Times Vol. 1 (SC) P.1″the learned UT
counsel argued that the personal liberty of an individual
may be curtailed, where a person faces a criminal charge
Page 13 of 25 HCP No. 107/2024
or is convicted of an offence and sentenced to
imprisonment. That where a person is facing trial on a
criminal charge and is temporarily deprived of his personal
liberty owing to criminal charge framed against him, he
has an opportunity to defend himself and to be acquitted
of the charge, in case prosecution fails to bring home his
guilt. That, however, where such a person is convicted of
offence, he still has satisfaction of having been given
adequate opportunity to contest the charge and also to
adduce evidence in his defense. That, however, framers of
the Constitution have, by incorporating Article 22(5) in the
Constitution, left room for detention of a person without a
formal charge and trial. That it’s aim and object is to save
the society from the activities that are likely to deprive a
large number of people of their right to life and persona
liberty. That in such a case, it would be dangerous for the
people to wait and watch, as by the time, the person
having dangerous designs, would execute his plans,
exposing general public to risk and causing colossal
damage to the life and property.
The learned UT counsel while placing reliance on
another authoritative judgment of the Hon’ble Apex Court
cited as “State of Bombay vs Atma Ram Shridhar
Vaidya AIR 1951 SC 157″contended that it was inter alia
observed by the Hon’ble Apex Cort in the referred case
that, “As has beengenerally observed, this is a matter
Page 14 of 25 HCP No. 107/2024
for the subjective decision of the Government and that
cannot be substituted by an objective test in a court of
law. Such detention orders are passed on information
and materials which may not be strictly admissible as
evidence under the Evidence Act in a court, but which
the law, taking into consideration the needs and
exigencies of administration, has allowed to be
considered sufficient for the subjective decision of the
Government.”
The learned UT counsel in support of his
contentions also placed reliance on the authoritative
judgment of the Hon’ble Apex Court cited as “Union of
India & Anr vs Dimple Happy Dhakad, Criminal
Appeal No. 1064/2019 decided on 18th July, 2019″ as
also the judgments of this Court passed in “WP(Crl) No.
251/2019 decided on 7th February, 2020; LPA No.
164/2021 decided on 27th April, 2024.”
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
Page 15 of 25 HCP No. 107/2024
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
the State or maintenance of public order, then the
liberty of the individual must give way to the larger
interest of the nation.”
8) The learned UT counsel prayed for dismissal of
the petition.
9) I have perused the instant petition, reply
affidavit filed by the respondents and the copies of
documents enclosed with the petition. I have also gone
through the xerox copy of the detention record produced by
the learned counsel for the respondents.
10) It appears from the perusal of the record that
admittedly the registration of case FIR No. 18/2022 under
Sections 13 and 39 of ULA (P) Act, with Police Station,
Kunzar, constitutes as the main basis for issuance of the
impugned detention order by the respondents, in addition
to the other allegations/inputs against the
petitioner/detenu regarding his involvement in the
commission of unlawful activities. Perusal of the
documents relating to the case FIR No. 18/2022 of PS
Kunzar reveals that the petitioner/detenu was brought
Page 16 of 25 HCP No. 107/2024
under formal arrest along with one person, namely,
Mohammad Akbar Malik S/o Abdul Gani Malik on 11 th
February, 2022 within the premises of Police Station,
Kunzar, as he had appeared pursuant to the direction of
the police concerned in connection with his questioning.
So, it is clear that the petitioner/detenu remained under
detention right from 11th February, 2022 until he was
released on bail on 14th March, 2024 pursuant to the bail
order dated 13th March, 2024 of the competent Trial Court.
It is admitted case of the respondents that the
petitioner/detenu was arrested in execution of PSA warrant
on 6th April, 2024 and lodged in the District Jail,
Udhampur. It is the case of the petitioner/detenu that after
his release pursuance to the bail order dated 13th March,
2024, he was called to the Police Station, Kunzar after
three days and was detained thereunder, until he was
removed to District Jail, Udhampur on 6th April, 2024. So,
he is again continuously under detention since 6th April,
2024 under the authority of the impugned preventive
detention order dated 4th April, 2024.
11) It was contended by the learned counsel for the
petitioner/detenu that the petitioner/detenu was bailed out
in the case FIR No. 18/2022 of PS Kunzar under Sections
13 and 39 of the ULA(P) Act, only after the competent Trial
Court was convinced in the light of the evidence that the
allegations/charge against the petitioner/detenu does not
Page 17 of 25 HCP No. 107/2024
seem to be prima facie true. However, such an opinion of
the learned Trial Court is deemed to have been made for
the limited purpose of consideration of his bail order and is
always subject to the outcome of the trial. The learned
counsel for the petitioner/detenu during his arguments
inter alia contended that no disclosure was made by the
petitioner/detenu in respect of the objectionable posters
and, as such, nothing was recovered at his instance. The
learned counsel also contended during his arguments that
the petitioner/detenu was picked up from his home and
booked in the case FIR No. 18/2022 by PS Kunzar, only on
the apprehension of his misconduct during the then forth
coming assembly elections in the UT of Jammu and
Kashmir.
In the opinion of this Court, there appears to be
no proximate or livelink between the circumstances/
allegations leading to the registration of case FIR No.
18/2022 of PS Kunzar and need for issuance of the
impugned detention order, maintaining a gap of more than
two 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 10.03.2006″. The relevant paras of the
judgment are reproduced as hereunder:-
Page 18 of 25 HCP No. 107/2024
“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 livelink 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.”
12) The learned Detaining Authority has not
addressed the aspect as to how a normal criminal law is
inadequate to deal with the petitioner/detenu. The
petitioner/detenu was admitted to bail by the competent
Trial Court after a period of more than two years on 13 th
March, 2024, 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 order dated 13th March,
2024 was assailed before any competent forum and prayer
Page 19 of 25 HCP No. 107/2024
of the UT for cancellation of the bail was not allowed. It is
also not the case of the respondents that the
petitioner/detenu immediately after his release in the case
FIR No. 18/2022 of PS Kunzar pursuant to the bail order
dated 13th March, 2024, indulged in any illegal activity,
with any specific allegation. On this account also, the
issuance of the impugned detention order was not
unavoidable.
13) 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
Page 20 of 25 HCP No. 107/2024
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.”
14) In “Vijay Narain Singh Vs. State of Bihar, (1984)
3 SCC 14″, the Hon’ble Apex Court has held at Para 32 of the
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.”
15) 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.”
16) It is the case of the petitioner/detenu that he
was working as a labourer for sustenance of his family and
the said fact of his being laborer is also borne out from the
grounds of detention. The continued detention of the
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petitioner/detenu may have affected his family in terms of
maintenance.
17) This Court is also in full agreement with the
authoritative law relied upon by counsel for the
respondents Mr. Mubashir Malik, learned Deputy Advocate
General 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 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 livelink between the alleged acts of February, 2022,
resulting in the registration of case FIR No. 18/2022 with
Police Station Kunzer and the need for issuance of the
impugned detention, order with a gap of more than two
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.
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18) The perusal of the record reveals that the
petitioner/detenu was detained under preventive detention
immediately after his release in the case FIR.
19) 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 animmediate 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
Page 23 of 25 HCP No. 107/2024
imperative and inevitable conditions rather mandatory
requirements for passing of a detention order.
20) 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.”
21) 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. 14/DMB/PSA/2024
dated 4th April, 2024, issued by the respondent No. 2, is set
aside and the petitioner/detenu is ordered to be released
from his preventive detention under the aforesaid order.
22) It is accordingly ordered. 23) Copy of this judgment be forwarded to the
Superintendent Jail concerned, with the direction to
release of petitioner/detenu from his custody under the
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aforesaid order, set aside, provided he is not involved in
any other case.
24) Xerox copy of the detention record is ordered to
be returned to the learned Deputy Advocate General
concerned.
25) Disposed of.
(MOHD. YOUSUF WANI)
JUDGE
SRINAGAR:
27th May, 2025
"Ayaz/TF Hamid"
i) Whether the Judgment is reportable in law books/journals: ? Yes.
ii) Whether judgment is reportable in Media(Print/Electronic) ? No
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