Jammu & Kashmir High Court
Arshad Begum @Arsho Th. Mohd vs Ut Of J&K And Others on 24 July, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 2
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 5/2025
CM No. 83/2025
Arshad Begum @Arsho Th. Mohd. .....Appellant(s)/Petitioner(s)
Shabir
Through: Mr. Sanchit Verma, Advocate.
vs
UT of J&K and others ..... Respondent(s)
Through: Mr. Sumeet Bhatia, GA.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
24.07.2025
ORAL
1. Arshad Begum @ Arsho claimed to be a widow of one Jamal Din,
R/O Rai Chak, Tehsil Basantgarh, stands detained under and in terms
of the provisions of Public Safety Act, 1978 (for short „the Act of
1978) in terms of detention order No. 10-PSA-2024 dated 29.11.2024
(for short „the Impugned order‟) passed by the District Magistrate,
Udhampur respondent-2 herein (for short „the Detaining Authority‟).
2. The impugned order of detention is being challenged by the petitioner
while maintaining the instant petition under Article 226 of the
Constitution, seeking a writ of Habeas Corpus through her son namely
Mohd. Shabir.
3. The petitioner has urged the following grounds of challenge in the
petition against the impugned order:-
5.1. That from the documents being provided to the
petitioner, it is crystal clear that the detaining authority at
the time of passing the detention order has failed to
appreciate the fact that there is no live or recent incident
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the detention order. The allegations levelled against the
detenue are vague without any concrete material evidence.
It is respectfully submitted here, that the detaining
authority, has in a mechanical manner without application
of mind passed the impugned detention order, where under
without any cogent material on record, it has observed that
the detenue will continue to indulge in acts prejudicial to
the security of state, most particularly Tehsil Basantgarh
and will also flame terrorist activities within the area. The
liberty of the petitioner/detenue will amount to making the
life of peace loving citizens vulnerable and also will
endanger the general security of society at large, per
contra, there is nothing on record to suggest or justify the
observations made by the detaining authority in the
detention order as the same are unwarranted and
arbitrary.
5.2. That the impugned order of detention has been passed
in mechanical and casual manner without application of
mind as there is no material much less a material which
justifies the issuance of detention order against petitioner
under the J&K Public Safety Act. The omission of the
detention authority to even remotely mention of the
criminal activities of the detenue, raises a clear
presumption that the detention order has been passed
without application of mind, and on the basis of the
detention record which are self-contrary to the grounds of
detention.
5.3. That the detention order has been passed without
application of mind, it is respectfully submitted here that,
alleged facts mentioned in the grounds of detention, cannot
be any stretch of imagination becomes a link to detain the
petitioner and the same has been fabricated by the police to
justify its illegal Act. The order impugned does not specify
any specific allegation against the detenue and does not
show how the detenue is involved in the allegations alleged
against the detenue. It is a case where due to insufficient
grounds of detention, the detaining authority has
mechanically observed that, “there exists every likelihood
that the subject will continue to indulge in acts prejudicial
the security of state most particularly Tehsil Basantgarh
and will also flame terrorist activities within the area. The
liberty of the subject/petitioner will amount to making the
lives of the peace loving citizen vulnerable and also will
endanger the general security of the society at large,
therefore in order to stop the petitioner/subject from
indulging in such activities and to safeguard the lives and
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CM No. 83/2025
property of innocent persons, detention of the detenue
under the provisions of the J&K Public Safety Act has
become exigent/imperative.” It becomes overbearingly
important to mention that in the detention order and
ground of detention, there is no convincing material which
discloses the basis of the aforementioned observation
against the detenue. On this count the impugned order
deserves to be quashed.
5.4. The allegations/grounds of detention are vague and on
mere ascertain of detaining authority, where no prudent
man can make an effective representation against these
allegations and can only be defended in the court of law. It
is important to mention here that the grounds mentioned in
ground of detention have no nexus with the
detenue/petitioner and has been fabricated by the police in
order to justify illegal action of detaining the
detenue/petitioner. It is pertinent to mention here that the
grounds of detention were never explained to the detenue in
her local language (Urdu/Dogri), which she could have
understood.
5.5. That the respondents have not initiated any action
against the detenue until now, if there was any violation of
law or for the activities of the detenue which were
prejudicial to the security of the state as alleged by the
respondents, the petitioner would have been booked under
the penal/ordinary law of land, but that has not been done
till date and instead the respondent no. 2 had issued the
order of detention.
It is a beaten law that such detentions cannot be made a
substitute for the ordinary law, and absolve the
investigating authorities of their normal functions of
investigating crimes which the detenue may have
committed. The preventive detention cannot be used as an
instrument to keep the person in perpetual custody without
any material evidence and on the basis of vague
allegations. Hence, it was obligatory on the detaining
authority to state the reasons and the recent activities,
which became imperative in passing the impugned order.
5.6. That in absence of material supporting the aforesaid
allegations against the detenue, or specifying details of
such incident, it cannot be held that the activities of the
detenue are prejudicial to the security of the state nor there
is any material evidence in the detention record to
substantiate vague allegations against the detenue. All the
allegations levelled in the ground of detention are vague
without any substance and basis and cannot be relied upon
while issuance of the order of detention, as the detaining
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CM No. 83/2025
authority has not arrived at the subjective satisfaction, on
objective basis before passing the impugned order. It may
be noted here that excluding general vague allegations,
there is no material on record which shows that the
detenue is acting in any such manner which is prejudicial
to the security of the state.
“Liberty is not a gift of the state to its citizens;
considering that the powers exercise by the detaining
authority, flows from the constitution of India, which
in itself is a Charter of power granted by Liberty and
not a Charter of Liberty Granted by Power”, the
petitioner being a citizen of republic of India is
entitled to rights granted to the detenue under the
Constitution of India, and considering that, in
preventive detention jurisprudence whatever little
safeguards of the Constitution and the enactments
authorizing such detention, provide utmost
importance and must be strictly adhered to.
5.7. That the perusal of the grounds of detention being
provided to the petitioner, it is abundantly clear that the
same are vague as there is no specific reference to date,
time place and act of the petitioner mentioned which
constraints the detaining authority to issue the impugned
detention order, thereby detaining the petitioner under the
J&K Public Safety Act and the allegations being levelled
against the petitioner are unsubstantiated and unverifiable,
as such, the detention order is bad and requires to be
quashed.
5.8. That detention order impugned is bade and the ground
of detention being projected, appears to be forceful and
vague, as there is no mention of particulars of place, time
date or, as to how the petitioner is involved in any anti-
national activities, or, that the acts of the petitioner will be
prejudicial to the security of the state. The grounds being
vague and lacking in material particulars as such, the
detention could not make an effective representation
against here detention on the basis of these vague
allegations, without any material in support of the same.
Thus, the same violation the Constitutional guarantees
envisaged under Article 22(5) of the Constitution, and the
Hon’ble Supreme Court in decision reported in “1989 3
SCC 590, titled Jahangirhan Fazal Khan Pathan Versus
The Police Commissioner”, held that such detention order
is illegal and unsustainable.
5.9. That perusal of grounds of detention issued by
respondent no. 2 and dossier issued by the respondent no. 3
will make it abundantly clear that the grounds of detention
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exhibits non application of mind in the process of deriving
of subjective satisfaction as such the order impugned is bad
and required to be quashed.
5.10. That even otherwise as per the version of the
respondents the allegations levelled against the detenue are
purely criminal in nature and the detaining authority has
enormously fail to justify as to how the law of the land is
not sufficient to deal and deter the detenue from indulging
in activities as alleged.
5.11. That is is an admitted case that the petitioner is an
illiterate person and the grounds of detention order were
couched in a hyper-technical language which was beyond
here comprehension and the detaining authority was under
legal obligations to furnish the grounds of detention to the
detenue, in her local language (Urdu/Dogri) to enable her
to make an effective and purposeful representation and
even otherwise the grounds of detention has not been
explained to the petitioner in the language which she
understands thereby violating her constitutional and
statutory rights to make effective representation.
5.12. That it is an admitted position of fact, that there is
nothing in the record placed by the respondent no. 3 before
the detaining authority which indicates, that the detenue
had involvements in any sort of alleged activity in recent
times, other than vague allegations. The allegations against
detenue are that she is acting in a manner which is
prejudicial to the security of the state. However, on the
contrary, there is nothing in the detention record to suggest
that the detenue has indulged in any activity as alleged.
5.13. That the District Magistrate has also failed in
reporting the fact of detention of the Petitioner to the
Government forthwith for according its approval u/s 8 of
J&K Public Safety Act, 1978; as such the order of
detention of the Petitioner is liable to be set aside. The
Hon’ble Supreme Court had the occasion to emphasize the
importance of the expression forthwith in preventive
detention jurisdiction in Sk. Salim v. The State of West
Bengal (1975) 1 SCC 653 as under;
“The requirement that the District Magistrate or the
other officers making the order of detention shall
forthwith report the fact of making the order to the
State Government can therefore admit of no
relaxation, especially because it has a distinct and
important purpose to serve. The 12 days period which
the Act in normal circumstances allows to the State
Government for approving the detention order is
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CM No. 83/2025evidently thought to be reasonably necessary for
enabling the Government to consider the pros and
cons of the order. Delay on the part of the District
Magistrate or the other officers in reporting to the
State Government the fact of making the detention
order would inevitably curtail the period available to
the State Government for approving the detention
order. The period of 12 or 22 days, as the case may
be, which is referred to in Section 3(3) runs from the
date on which the order of detention is made and not
from the date on which the fact of making the order is
reported to the State Government. Such a delay may
conceivably lead to hurried and cursory
consideration of the propriety or justification of the
order and thereby impair a valuable safeguard
available to the detenue. A liberal construction of the
requirement that the officer making the order of
detention shall forthwith report the fact to the State
Government is therefore out of place.”
The impugned order of detention deserves to be set
aside on this ground also.
5.14. That the grounds of detention on which the Petitioner
has been detained are vague, uncertain, untrue, baseless,
unfounded and ambiguous and lack in material particulars
and details.
5.15. That the order of detention will make it abundantly
clear that the petitioner has not been made aware of her
right to make representation against the detention order to
the detaining authority. On this ground also, the detention
order is bad and requires to be set aside.
5.16. That the constitutional and statutory safeguards
guaranteed to a person detained under preventive detention
law and meaningful unless and until the detenue is made
aware of and furnished all the materials that weighed with
the detenue authority while making detention order. In the
instant case, the petitioner has only being provided with the
copy of order of detention, grounds of detention, copy of
dossier and copies of DDR report. It is pertinent to mention
here that perusal of the DDR will make it abundantly clear
that there is not an iota of allegations against the petitioner
which justifies here detention under the J&K Public Safety
Act.
5.17. That the detaining authority has not provided a
complete material to the petitioner on which it has relied
while ordering the detention of the petitioner thus made the
petitioner unable to exercise her constitutional and
statutory rights guaranteed under Article 22(5) of
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CM No. 83/2025
constitution of India and Section 13 of J&K Public Safety
Act. The Hon’ble Supreme Court of India had the occasion
to emphasize the importance of the furnishing all the
materials that weight with the detenue authority while
making detention order, in case titled “Union of India
versus Ranu Bandari” decision reported in 2008 (17) SCC
348 has held while deciding the question as to whether it is
mandatory to supply all copies of documents relied by
detaining authority has held as under:-
“27. This brings us to the next question as to whether
even such material as had not been considered by the
Detaining Authority while issuing the detention order,
is required to be surprised to the detenue to enable
him to make an effective representation against his
detention.
“28. The decisions cited by the Learned Additional
Solicitor General in support of his contentions that all
documents mentioned in the detention order were not
required to be served on the detenu, such as in J.
Abdul Hakeem’s case (Supra), takes note of the
earlier decisions in Ahamedkutty’s case (Supra) and
Radhakrishnan Prabhakar’s case (Supra) which had
make it mandatory for the Detaining Authority to
supply copies of all documents which had been relied
upon by the Detaining Authority to the detenu,
whether he had knowledge of their contents or not. Of
course, in Radhakrishnan Prabhakar’s case (Supra) it
was also made clear that there is not legal
requirement that a copy of every document mentioned
in the order has to be supplied to the detenu. What is,
therefore, imperative is that copies of such documents
which had been relied upon by the Detaining
Authority for reaching the satisfaction that in the
interest of the State and its citizens the preventive
detention of the detenu is necessary, have to be
supplied to him. Furthermore, if in this case, the
detenu’s representation and writ petition had been
placed before the Detaining Authority, which
according to the detenu contained his entire defence
to the allegations made against him, the same may
have weighed with the Detaining Authority as to the
necessity of issuing the order of detention at all.
29. We are inclined to agree with the submissions
made on behalf of the respondent that,
notwithstanding the nature of the allegations made,
he was entitled to the assurance that at the time when
the detention order was passed all the materials, both
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CM No. 83/2025for and against him, had been placed for the
consideration of the Detaining Authority and had
been considered by it before the detention order was
passed, having particular regard to the orders passed
by the Settlement Commission appointed under the
provisions of the Customs Act, 1962, which absolved
the detenu from all criminal prosecution.
30. In the instant case, as some of the vital documents
which a direct bearing on the detention order, had not
been placed before the Detaining Authority, there was
sufficient ground for the detenu to question such
omission. We are also of the view that on account of
the non-supply of the documents mentioned
hereinabove, the detenu was prevented from making
an effective representation against his detention.”
The case of the detenu covered by the dictum of the
above judgment rendered by the Hon’ble Supreme
Court, and the impugned order of detention being
result of non-application of mind and thus perverse
deserves to be set aside on this ground alone.
5.18. that it may be noted here that due to non-supply of
material which the respondent no. 2 (District Magistrate,
Udhampur) had relied upon while directing detention, to
the petitioner, has deprived the fundamental right
guaranteed under Article 22(5) of the Constitution of India,
to make an effective representation to the government
against her detention. It is submitted here that the
representation contemplated under Article 22(5) of the
Constitution of India and Section 13 of Jammu and
Kashmir Public Safety Act, 1978 may not be effective
unless the detenue had been apprised of all the material
which had entered the mind of detaining authority while
contemplating exercise of jurisdiction under section 8 of
Jammu and Kashmir Public Safety Act, 1978 as such the
impugned order violates the fundamental right to liberty of
the petitioner. The non-supplying of material to the
petitioner has resulted in prejudice to the detenue in
commenting on the material relied upon by the District
Magistrate to make effective representation against the
said detention order. It is pertinent to mention here that the
petitioner has made a representation to the Government
despite of the fact that material which weight before the
detaining authority in passing the detention order
impugned has not been provided to the petitioner and till
date the outcome of the representation has not been
communicated to the petitioner. Copy of the representation
along with postal receipts are collectively marked and
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enclosed as Annexure-II. Hence, the order impugned is in
itself liable to be quashed on the ground that the same is
unsustainable being violative of Article 22(5) of
Constitution of India read with section 13 of Jammu and
Kashmir Public Safety Act, 1978.
5.19. That the Daily Diary Reports are vague and bereft of
details of activities of the petitioner which necessitated the
issuance of detention order could not have been relief upon
the respondent no. 2 while issuing the detention order.
5.20. That the Daily Diary Reports being provided to the
petitioner will make it abundantly clear that there is no
adverse entry against the petitioner and all the DDRs are
vague and bereft of necessary details in respect of specific
activities of the petitioner, which necessitated the issuance
of detention order, as such, the said DDRs could not have
been relied upon by petitioner while issuing the detention
order is bad and required to be set aside.
5.21. That the petitioner till date has not been made to
understand why she has been detained; further no material
is provided to the petitioner so as to enable her to pursue
her case. The Right to Liberty as guaranteed under Article
21 of the Constitution can be negated in view of Article 2
(3)(b) of the Constitution which is an exception of Article
21 of the Constitution which is an exception to Article 21 of
the constitution. The said exception authorises the
concerned authorities to pass preventive detention, but
while passing detention order, such power shall be exercise
in a manner which may not have the trappings of depriving
a person of the guaranteed liberty. In short, an exceptional
case has to be made out for passing the preventive order
but while doing so procedural safeguard are to be
respected.
Breach in observing the procedural safeguard gives right
to the detenue to claim that she has been prejudice as her
liberty has been curtailed in contravention to the procedure
established by law. In the present case the procedural
safeguards have been flouted to air by the authority, the
petitioner was never supplied with the material relied by
the District Magistrate for invoking Public Safety Act
against the petitioner. It is further submitted that the
petitioner is illiterate lady and the detention order and
grounds of detention were never read over and explained to
the petitioner by the respondents.
5.22. That for all the reasons stated hereinabove and to be
stated at the bar, the order of detention of the detenue is
liable to he quashed.
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4. Counter affidavit has been filed by the respondent 2-Detaining
Authority to the petition opposing the petition on the premise that
upon receipt of the dossier from Senior Superintendent of Police,
Udhampur dated 22.11.2024 wherein it had been reported that there is
a strong apprehension that the petitioner has affiliations with terrorists
organisations raising significant security reasons and being a resident
of remote Dhok at Karur Nallah, is in active collaboration with
terrorists sharing sensitive information with them about local
infrastructure, intelligence and security force movements posing a
significant threat to the security of the State, which collaboration has
hindered law enforcement and counter of terrorism operations leading
to the failure of numerous search operations and escape of the
terrorists, necessitate the detention of the petitioner under preventive
law and upon examining the whole record furnished by the SSP,
Udhampur inasmuch as, having received inputs from intelligence
agencies that beyond passive support the petitioner is actively aiding
terrorists by providing essential supplies like shelter, ration etc. as the
logistic support for the survival of the terrorists in hostile
environments inasmuch as the presence of the petitioner found near
active search operation areas, the petitioner, as such, was found to be
involved in activities prejudicial to maintenance of public order and
security of the State, thus, a dire need to prevent the petitioner from
continuing with such activities, warrants her detention under
preventive law.
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It is being next stated that all the provisions of the Act stand complied
with in letter and spirit while detaining the petitioner including the
furnishing of all the relevant documents on the basis of which the
petitioner was detained through one Inspector Rashika Sharma, SHO
Police Station, Udhampur and that the contends of the detention order
and grounds of detention as well were read over to the petitioner and
explained to her in Dogri/Kashmiri language, which she fully
understood and in acknowledgement thereof, her thumb impression
was obtained in this regard and that the petitioner as well came to be
informed that she can make a representation against her detention.
It is being next contended that the petitioner filed a representation
through her son before the Commissioner/Secretary, Home
Department, Govt. of UT of J&K against her detention, which
representation was duly considered and rejected in terms of order
dated 08.01.2025.
It is being reiterated that the petitioner was detained as precautionary
measure owing to her activities being prejudicial to the maintenance of
public order and security of the State.
Heard learned counsel for the parties and perused the record.
5. It is significant to mention here that the counsel for the petitioner
while making submissions in line with the case set-up in the instant
petition, urged three grounds of challenge, notwithstanding the
multiple grounds of challenge urged in the petition.
6. The first ground urged by the counsel for the petitioner is that the
petitioner came to be detained by the respondents merely on account
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of suspicion of her being involved in activities prejudicial to the
maintenance of public order and security of State, on the premise that
the petitioner did not appear before the police agencies wherein she
was summoned on 30.10.2024 and 03.11.2024 as is recorded in the
DDR‟s of the concerned Police Station and that, as such, the
respondents under those circumstances ought to have proceeded
against the petitioner under ordinary criminal law for not having
responded to her summoning by the concerned police agency,
however, the respondents instead have chosen to take recourse to the
preventive law by way of as a short-cut measure which is not
permissible in law.
7. Learned counsel for the petitioner would secondly urge that even
though it is assumed that the petitioner could have been detained by
the respondents for the aforesaid reasons under preventive law, yet in
the grounds of the detention, the activities alleged and attributed to the
petitioner for providing logistic support to the terrorists in the area
besides, providing them shelter, food and information about sensitive
military operations, no details whatsoever in this regard stand provided
in the grounds of detention as to upon which date, time and place the
petitioner provided such alleged logistic support to the terrorists,
which non-furnishing and providing of such details in the grounds of
detention render not only the grounds vague and ambiguous but also
deprive the petitioner of making an effective representation against her
detention.
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8. It is lastly contended by the counsel for the petitioner that despite the
fact that the grounds of detention were vague and ambiguous, yet the
petitioner submitted a representation against her detention through her
son and sent the same through registered post to the respondents on
14.12.2024 which came to be received by the respondents on
16.12.2024, however, the said representation came to be belatedly
considered and rejected by the respondents while adopting a callous
and casual approach.
9. The counsel for the respondents on the other hand, while opposing the
aforesaid contentions of the counsel for the petitioner would heavily
rely upon the case set-up in the counter affidavit filed to the petition
and would insist that the petitioner came to be detained validly and
legally in accordance with law, after complying with and fulfilling all
statutory and constitutional requirements.
10. In so far as, the aforesaid first and second plea of the counsel for the
petitioner is concerned, a closer examination of the grounds as also the
detention record produced by the counsel for the respondents would
tend to show that no details have been spell out either in the dossier or
else in the grounds of detention about the dates of alleged prejudicial
activities attributed to the petitioner, the names and particulars of the
alleged terrorists, the date and time and inasmuch as the place, the
petitioner allegedly provided logistic support, inasmuch as, food and
sensitive information to said terrorists.
11. Law is no more res integra in this regard, about these vague grounds
and stands settled in series of judgments by the courts that the grounds
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of detention drawn and framed by the Detaining Authority must in
explicit, specific and unambiguous terms detail out the alleged
prejudicial activities attributed to the detenue in order to enable the
detenue to make an effective representation against the detention and
that vague and ambiguous grounds, in essence, deprive a detenue from
making an effective representation against the detention, thus in the
process infringe the provisions of Article 22 (5) of the Constitution.
12. In so far as the aforesaid last ground/plea urged/raised by the counsel
for the petitioner is concerned, it is not being disputed and denied by
the respondents that the petitioner did not submit a representation
against his detention which came to be received by them on
16.12.2024 and decided on 08.01.2025.
The Apex Court in case titled as “Rahmatullah vs. State of Bihar
and others” reported in 1979 (4) SCC 559, has in this regard, at Para
4 held as under:-
“04. The normal rule of law is that when a person commits an
offence or a number of offences, he should be prosecuted and
punished in accordance with the normal appropriate criminal
law; but if he is sought to be detained under any of the
preventive detention laws as may often be necessary to prevent
further commission of such offences, then the provisions of
Article 22 (5) must be complied with. Sub-Article (S) of Article
22 reads:
“When any person is detained in pursuance of an order
made under any law providing for preventive detention,
the authority making the order shall, as soon as as may
be, communicate to such person the grounds on which
the order has been made shall afford him the earliest
opportunity of making a representation against the
order.”
This Sub-Article provides, inter alia, that the detaining
authority shall as soon as may be communicate the
grounds of detention and shall afford him the earliest
opportunity of making a representation against the
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order. The opportunity of making a representation is
not for nothing. The representation, if any, submitted
by the detenu is meant for consideration by the
Appropriate Authority without any unreasonable delay,
as it involves the liberty of a citizen guaranteed by
Article 19 of the Constitution. The non-consideration or
an unreasonably belated consideration of the
representation tantamounts to non-compliance of Sub-
Article (5) of Article 22 of the Constitution.”
13. For what has been observed, considered and analysed hereinabove, the
impugned order is not legally sustainable.
14. Accordingly, petition is allowed and the impugned order No. 10-
PSA-2024 dated 29.11.2024 passed by the District Magistrate,
Udhampur respondent-2 herein under and in terms of the
provisions of Public Safety Act, 1978 is quashed with directions to
the respondents including the concerned jail authority to release the
petitioner from preventive detention forthwith unless is required in any
other case.
15. The detention record produced by the counsel for the respondents is
returned back to the counsel for the respondents in the open court.
16. Disposed of.
(JAVED IQBAL WANI)
JUDGE
Jammu
24.07.2025
Mahavir
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
Mahavir Singh
2025.08.05 16:39
I attest to the accuracy and
integrity of this document