Jammu & Kashmir High Court
Rehmatullah vs The Union Territory Of Jammu & Kashmir on 22 July, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.154/2024
Reserved on: 10.07.2025.
Pronounced on: 22.07.2025
Rehmatullah, Age 27 years, ....Petitioner(s)
S/O Abdul Ghani Padder,
R/O Dessa Bhata, At present
H. No.32, Ward No.7, Akramabad,
Tehsil & District Doda.
Through brother Mohd. Irfan,
S/O Abdul Ghani Padder.
Through :- Mr. Rahul Raina, Advocate vice
Mr. S S Ahmed, Advocate
V/S
1. The Union Territory of Jammu & Kashmir ....Respondent(s)
Through Commissioner/Secretary,
Home Department, Civil Secretariat,
Jammu-180001.
2. The Chairman, Advisory Board (constituted under
J&K Public Safety Act, 1978) Mini Block, Civil
Secretariat, Jammu-180001.
3. The District Magistrate, Doda-182202.
4. Senior Superintendent of Police, Doda-182202.
5. Superintendent, Central Jail,
Kot Bhalwal, Jammu-181122.
Through :- Mr. Eishaan Dadhichi, GA.
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner challenged the Detention Order No.PSA-02 of 2024 dated
09.11.2024 (impugned order), issued by respondent No.3, District Magistrate,
Doda ( “the detaining authority”), whereby the petitioner namely Rehamatullah
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S/O Abdul Ghani Padder R/O Dessa Bhata A/P Akramabad, Tehsil & District
Doda (for short „the detenue‟) has been placed under preventive detention, in
order to prevent him from acting in any manner against the „Security of the
State‟.
2. Petitioner contends that the Detaining Authority passed the impugned
detention order, based primarily on 05 FIRs, in most of which the detenue
stands discharged and the remaining FIRs are nothing but vague and the
sponsoring agency has concealed this material fact from the detaining authority,
that on this count alone, the impugned detention order is liable to be quashed;
that the representation filed on behalf of the petitioner by his brother on
22.11.2024 to the Government with copy to the District Magistrate was neither
considered expeditiously, nor outcome of the said representation was conveyed
to the detenue; the dossier and grounds of detention would show that the
respondents have relied heavily on the above FIRs for passing the impugned
detention order, however, whole of the material, was not supplied to the detenue,
which prevented him from making an effective and meaningful representation to
the detaining authority or the government against the impugned detention order;
that on the basis of mere apprehension that too on the vague allegations alleged
in the dossier or grounds of detention, the detaining authority has passed the
impugned order.
3. Per contra, the respondents, in their counter affidavit, have controverted
the averments made in the petition and submitted that the representation
submitted by the petitioner to the detaining authority as well as Government was
duly considered by the respondents and was found without any merit and
rejected by the detaining authority on 05.12.2024 and by the Home Department
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on 21.01.2025; that the petitioner was found involved in multiple cases and his
activities have been anti social and anti national; that in order to maintain
security of State, one FIR is sufficient to take the person into preventive
detention; that the detention order and grounds of detention were handed over to
the detenue and the same were read over and explained to him in the language he
understands; that the grounds raised by the detenue are factually misconceived
and legally untenable. The respondents have also produced the detention record
in order to lend support to the contentions raised in the counter affidavit.
4. Mr. Rahul Raina, learned counsel appearing for the Detenue making
reference to the grounds of challenge raised in the petition, that Detaining
Authority, though shown the detenue involved in 05 cases, what was placed
before it was only the copies of reports in those matters; that the detenue stands
discharged in a case/FIR No.173/2016 U/Secs 153-A/124-A/120-B RPC of
Police Station Doda vide order dated 24.02.2022, in another case FIR
No.177/2016 U/Secs 153-A, 120-A. 124-A, 332, 336 RPC of Police Station,
Doda vide order dated 27.02.2019 by the learned Additional District & Sessions
Judge, Doda. Had the Authorities placed the outcome of aforesaid cases FIRs, in
which the detenue stands discharged, before the detaining authority, there would
have been a different conclusion than the one which is challenged in the present
petition; that the detenue through his brother submitted representation to the
respondents on 22.11.2024 but the same was not considered and even if
considered, the outcome of the same was not conveyed to the petitioner, which
has prejudiced the rights of the petitioner enshrined in the Constitution of India;
that it is finally prayed that the writ petition be allowed and the impugned
detention order be set aside.
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5. Mr. Dadhichi, learned State Counsel, ex adverso, argued that the
contentions made on behalf of the detenue that the outcome of the FIR
No.173/2013 as well as FIR No. 177/2016 was not brought to the notice of the
detaining authority is concerned, it is contended that the detaining authority has
only considered the post FIRs lodged before his previous detention in 2016 vide
PSA No.01-09/PSA/DM/Doda/2016 dated 12.08.2016 as background history of
the detenue and has relied upon the fresh cases reported against him viz. FIR
No.82/2021, FIR No.178/2023, FIR No. 192/2024 and FIR No. 192/2024; the
latest DD report No. 05 dated 02.08.2024 and complaint U/S 126-B, 136 BNSS
to conclude with satisfaction that the detenue‟s remaining at large poses serious
security threat to the State; that the aforesaid FIRs registered against the detenue
would show the continuous involvement of the detenue in criminal/anti-national
activities without any respect for substantive law; that it was on the basis of
thorough examination, the detaining authority came to the conclusion that the
remaining at large of the detenue has grave possibility of creating serious threats
to the security scenario of the UT of J&K, particularly sensitive District Doda;
that the outcome of the representation rejected by the detaining authority as well
as Government has duly been communicated to the detenue; that the impugned
detention order has been passed after due application of mind. Lastly, it is prayed
that the writ petition be dismissed and the detention order be upheld.
6. Heard learned counsel for the parties, perused the detention record and
considered the matter.
7. Insofar as the plea raised by the detenue that the material relied upon by
the detaining authority has not been supplied to him is concerned, the
respondents disputed the same by asserting that the entire material like detention
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order, dossier of detention, grounds of detention and copies of FIR and other
relevant documents was supplied to the detenue at Central Jail, Jammu, through
its superintendent. As per record, the detenue received detention order, Notice
of detention, grounds of detention (05 leaves), dossier of detention (07 leaves),
copies of FIRs/Statement of witnesses and other related documents (143 leaves),
total 157 leaves from executing officer PSI Khem Raj in presence of Assistant
Superintendent Central Jail Jammu, which were read over in English and
explained to the detenue in Urdu/Kashmiri languages, which he fully understood
and in lieu of which his signatures were obtained on the execution report.
Additionally, there is an affidavit of the Executing Officer PSI Khem Raj in the
detention record, to the aforesaid extent, that the grounds of detention and
warrant were read over to him on 11.11.2024 in Hindi/Urdu/English language, in
presence of Superintendent Central Jail, Jammu.
8. The grounds of detention clearly show that the detenue is an OGW and a
sympathizer of militants, who was detained under PSA earlier in the year 2016
vide PSA No.01-09/PSA/DM/Doda/2016 dated 12.08.2016; that after his release,
fresh cases came to be registered against him viz. FIR No.82/2021, FIR No.
178/2023, FIR No. 192/2024 and FIR No. 192/2024, DD report No.05 dated
02.08.2024 and complaint U/S 126-B, 136 BNSS, for the commission of
offences serious in nature; that the impugned detention order is passed by the
detaining authority on the basis of dossier submitted by the SSP concerned
wherein 05 FIRs, including 2 FIRs lodged before his preventive detention in
2016 and 03 FIRs lodged after his release registered against the detenue at
Police Station, Doda, showing the detenue‟s continuous involvement in
criminal/anti-national activities without any respect of substantive law, thus,
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posing serous threat to the security scenario of the UT of J&K, particularly,
District Doda. Keeping in view the activities of the detenue, the Detaining
Authority after due application of mind, by arriving at subjective satisfaction has
issued the order of detention, which cannot be found fault with.
9. It is settled proposition of law that this Court while exercising
jurisdiction under Article 226 of the Constitution has a limited scope to
scrutinize whether detention order has been passed on the material placed before
it, and it cannot go further and examine the sufficiency of material. This Court
does not sit in appeal over the decision of the Detaining Authority and cannot
substitute its opinion over that of detaining authority when the grounds of
detention are precise, pertinent, proximate and relevant (See State of Punjab v.
Sukhpal Singh, (1990) 1 SCC 35. The power of preventive detention is a
precautionary power exercised in reasonable anticipation. It may or may not
relate to an offence. The order of preventive detention may be made before or
during prosecution and the pendency of the prosecution is not a bar to an order
of preventive detention and is also not a bar to prosecution. The power of
preventive detention is different from punitive detention. In a prosecution, the
accused is sought to be punished for his past acts, however, in preventive
detention the past act is merely a material for drawing inference about future
conduct of the detenue.
10. The aim of the preventive detention is not to punish a person for having
done something but to intercept and prevent him from doing so. Hon‟ble the
Supreme Court in the case of Naresh Kumar Goyal v. Union of India and
others, (2005) 8 SCC 276 and Union of India and another v. Dimple Happy
Dhakad, AIR 2019 SC 3428 has held that “an order of detention is not a
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curative or reformative or punitive action, but a preventive action, avowed object
of which being to prevent anti-social and subversive elements from imperiling
welfare of the country or security of the nation from disturbing public tranquility
or from indulging in illegal activities or from engaging in illicit traffic in narcotic
drugs and psychotropic substances etc. Preventive detention is devised to afford
protection to society. The object is not to punish a man for having done
something but to intercept before he does it, and to prevent him from doing so.”
The law of preventive detention has direct bearing on the subjective satisfaction
of the Detaining Authority. The subjective satisfaction of a Detaining Authority,
whether to detain a person or not, is not open to the objective assessment by a
Court. The Court while exercising power under Article 226 is not to act as an
appellate forum to scrutinize the merits of the administrative decision to detain a
person. The Court cannot substitute its own satisfaction for that of the authority
concerned and decide whether its satisfaction was reasonable or proper, or
whether in the circumstances of the matter, the person concerned should have
been detained or not.
11. It is apt to mention that our Constitution undoubtedly guarantees various
freedoms and personal liberty to citizens in our Republic, however, such
freedoms guaranteed by the Constitutional mandate are not meant to be abused
and misused so as to endanger and threaten the very foundation of our society.
The larger interests of our nation as a whole and the cause of preserving for
every person the guaranteed freedoms demands reasonable restrictions on the
prejudicial activities of individuals who jeopardize the rightful freedoms of the
rest of the society. The main object of preventive detention is the security of the
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State, maintenance of public order and of supplies and services essential to the
community. Detention order, which has been issued by the detaining authority
after arriving at subjective satisfaction, does not suffer from any legal infirmity
as the rounds of detention are definite, proximate and free from any ambiguity.
Furthermore, the detenue was duly informed of what weighed with the detaining
authority while passing the order of detention. The Detaining Authority has
recorded its subjective satisfaction after considering all the material available,
thus, none of the constitutional or statutory provision has been violated.
12. So far as the contention of the detenue that neither his representation was
considered nor the outcome of the same conveyed to him is concerned, on
perusal of the detention record, it appears that the said representation dated
22.11.2024 was received by the detaining authority on 28.11.2024 and duly
considered and rejected on 05.12.2024; the Home Department, J&K vide No.
Home/PB-V/539/2024/7594861 dated 21.01.2025 disposed of the representation
of the detenue as well, being without merit. Thus, contention of the detenue that
his representation was neither considered nor outcome of the same was conveyed
to the detenue, pales into insignificance.
13. The challenge to the detention order, in the considered opinion of the
court by taking into account the above facts as emerged from the record, fails on
all fours. The above conspectus of things would goad this court to the only
inescapable conclusion that the respondents have rightly detained the detenue
under the Public Detention Act in view of serious allegations alleged against
him.
14. In the present case, the Detaining Authority has applied its mind by
going through all the material, past conduct of the detenue against whom five
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FIRs stand registered and accordingly, arrived at subjective satisfaction that the
activities of the detenue were prejudicial to the interest of the State and issued
the order of detention, which cannot be found fault with. Since the activities of
the detenue were directed against the object mentioned in the Act and the
Detaining Authority has arrived at subjective satisfaction that it was necessary to
prevent the detenue from acting in such manner and consequently, order of
detention came to be issued. Thus, it clearly shows that it is satisfaction of the
Government on the point, which alone is necessary to be established.
15. Liberty of an individual has to be curtailed, within reasonable bounds, for
the good of the society at large. The framers of the Constitution were conscious
of the practical need of preventive detention with a view to strike a just and
delicate balance between need and necessity to preserve individual liberty on one
hand, and security of the country as well as the interest of society on the other
hand. Security of State, maintenance of public order, prevention of drug
trafficking and other criminal activities demand effective safeguards in the larger
interest of the sustenance of a peaceful and democratic way of life. The personal
liberty may be curtailed, where a person faces a criminal charge or is convicted
of an offence and sentenced to imprisonment. Where a person is facing the trial
on a criminal charge and is temporarily deprived of his personal liberty because
of the criminal charge framed against him, he has an opportunity to defend
himself and to be acquitted of the charge in case the prosecution fails to bring
home his guilt. Where such an accused is convicted of offence, he still has
satisfaction of having been given the adequate opportunity to contest the charge
and also adduce the evidence in his defence.
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16. The incorporation of Article 22 in the Constitution left room for
detention of person without a formal charge and trial and without such person
held guilty of an offence and sentenced to imprisonment by a competent Court.
Its aim and object are to save the society from activities that are likely to deprive
a large number of people of their right to life and personal liberty. In such a case,
it would be dangerous for the people at large, to wait and watch, by the time
ordinary law is set into motion, the person having dangerous designs, would
execute his plans, exposing the general public to risk, causing colossal damage to
life and property. It is for that reason necessary to take preventive measures and
subsequently, prevent the person bent upon to perpetuate mischief from
translating his ideas into actions. Therefore, where individual liberty comes into
conflict with an interest of the security of the State or public order, then the
liberty of individual must give way to the larger interest of the nation, as has
been laid by the Hon’ble Supreme Court in Sunil Fulchand v. Union of India
(2003) 3 SCC 409.
17. Hon‟ble the Supreme Court in the case of Mohd. Subrati alias Mohd.
Karim v. State of West Bengal (1973)3 SCC 250, has held as under:-
“7. No doubt, the right to personal liberty of an individual is jealously
protected by our Constitution but this liberty is not absolute and is
not to be understood to amount to licence to indulge in activities
which wrongfully and unjustly deprive the community or the society
of essential services and supplies. The right of the
society as a whole is, from its very nature, of much greater
importance than that of an individual. In case of conflict between
the two rights, the individual’s right is subjected by our
Constitution to reasonable restrictions in the larger interest of the
society.”
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18. Personal liberty is one of the most cherished freedoms, perhaps more
important than the other freedoms guaranteed under the Constitution. It was for
this reason that the framers of the Constitution included the safeguards in Article
22 in the Constitution so as to limit the power of the State to detain a person
without trial, which may otherwise pass the test of Article 21, by humanizing the
harsh authority over individual liberty. In a democracy governed by the rule of
law, the drastic power to detain a person without trial for security of the State
and/or maintenance of public order, must be strictly construed. However, where
individual liberty comes into conflict with an interest of the security of the State
or public order, then the liberty of the individual must give way to the larger
interest of the nation.
19. Viewed thus, there is no ground to interfere in the impugned order of
detention. The petition lacks merit and is dismissed, as such.
20. The detention record be returned to the respondents through their
counsel.
Jammu: ) (MA CHOWDHARY)
22.07.2025 JUDGE
Raj Kumar
Whether the order is speaking? Yes
Whether the order is reportable? Yes
Raj Kumar
2025.07.22 16:17
I attest to the accuracy and
integrity of this document
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