Jammu & Kashmir High Court – Srinagar Bench
Showkat Ali Rather vs Union Territory Of J&K Through … on 1 August, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
HCP No. 54/2025
Reserved on: 25.07.2025
Pronounced on:01 .08.2025
Showkat Ali Rather, aged 37 years, S/o Ghulam Mohammad Rather R/o
Gulshan Ali Shalimar, Srinagar through his wife Mst. Mumtaza
....... Petitioner(s)
Through: Mr. Wajid Mohammad Haseeb, Advocate
Versus
1. Union Territory of J&K through Additional Chief Secretary, Home
Department, J&K Govt. Civil Sectt. Srinagar/Jammu
2. District Magistrate, sRINAGAR
3. Sr. Superintendent of Police, District Srinagar.
4. Superintendent, District Jail, Udhampur.
....Respondent(s)
Through: Ms. Maha Majeed, Assisting Counsel vice Mr. Mohsin Qadri, Sr. AAG
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this writ petition, petitioner prays for
quashment of detention Order No. DMS/PSA/43/2024 dated 03.12.2024,
passed by District Magistrate, Srinagar – respondent no. 2 (for short
„detailing authority‟) whereby detenu, namely Showkat Ali Rather, S/o
Ghulam Mohammad Rather R/o Gulshan Ali Shalimar, Srinagar, (for short
“detenu”) has been placed under preventive detention with a view to prevent
him from acting in any manner prejudicial to the maintenance of public
order, on the grounds made mention of therein.
2. Respondents have filed reply affidavit, insisting therein that the
detenu being a criminal bent of mind and was deeply influenced by radical
ideology, started committing and cheating the general public and duped
good amount from them. The General Public were feeling insecure in view
of activities by the detenu and has been found indulging himself in anti-
social activities and the detenu after every release did not mend his ways but
1
HCP No. 54/2025
got more boost to his confidence and indulged in burglary/theft/cheating /
gambling with more frequency for which the detenu has been arrested and
involved in number of cases-FIR Nos.13/2017, 14/2017, 42/2022, 58/2023
and 49/2023. The detenu also started to instigate local youth towards illegal
activities for personal vested interests, and his activities pose a serious threat
to the public order as he is involved in the activities prejudicial to the
maintenance of public order. The activities narrated in the grounds of
detention have been reiterated in the reply/counter affidavit filed by
respondents. The factual averments that detenu was not supplied with
relevant material relied upon in the grounds of detention have been refuted.
It is insisted that all the relevant material, which has been relied upon by the
detaining authority, was provided to the detenu at the time of execution of
warrant.
3. I have heard learned counsel for parties. I have perused the detention
record produced by learned counsel for respondents and considered the
matter.
4. The case set up by petitioner, in the petition, is that the detenu is an
innocent person, has been falsely implicated and has been detained under
preventive detention inasmuch as the grounds of detention are completely
vague indefinite, cryptic and do not specify any specific allegations against
the detenu. It is also mentioned in the grounds of detention that the detenu
being deeply influenced by radical ideology and started committing and
cheating the general public and duped good amount from the general public,
inasmuch as the detenu always looking for minting money from local youth.
The detenu has shown involved in a number of FIRs of Police Station
Harwan. He has already been bailed out in said FIRs and there were no
compelling reason for detaining authority to pass the detention order which
is totally non-application of mind. The activities attributed to the detenu
besides being false imaginary and stale in point of time and have no nexus
with the prejudicial activities to cause any adverse effect on the society and
remaining at large of the detenu will not in any manner impact the morality
and societal order.
5. Learned counsel for the petitioner further submits that the grounds of
detention are vague, irrelevant and non-existent as the allegations levelled
against the detenu are bereft of specific details, even the date, month and
2
HCP No. 54/2025
year of alleged illegal activities of the detenu and his alleged associates have
not been mentioned in the grounds of detention; inasmuch as the detenu did
not disrupt smooth conduct of Assembly Election 2024 for his personal
interests has been bound down in terms of Section 126/170 BNSS on 9 th &
10th September 2024, inasmuch as representation through his wife has been
filed before respondent no.1 and Advisory Board but no decision has been
taken on such representation nor anything regarding the same communicated
to the detenu/ petitioner.
6. It is further stated that the allegations mentioned in the FIRs supra do
not fall within the ambit of Section 8 as is defined under J&K Public Safety
Act 1978, neither the grounds of detention or dossier would show that the
offences alleged against the detenu qua fraudster, fraud, cheating do fall
within the embargo of Section 8, therefore, there is total non application of
mind on the part of the detaining authority as the allegations as mentioned in
the grounds of detention are contrary to law qua Section 8 of PSA. Even if,
the allegations assumingly are true envisaged in the grounds of detention
and dossier would not fall as public order as is denied in terms of Section 8
(3) (b) of PSA; inasmuch as , there is no proximate link between the
grounds of detention and the eminent threat to the security of State or Public
Order. He also avers that impugned order of detention suffers from non-
application of mind because respondent no.2 in detention order has referred
to alleged commission of various offences and registration of FIRs, but not
spelled out how involvement of detenu in commission of different offences
has potential of disturbing public order.
7. The submission of the learned counsel for the petitioner is that the
impugned detention order is without application of mind as there is no
cogent reason for respondent no.2 to pass the detention order inasmuch as
criminal law has already been set into motion against detenu. It is also
averred that the detaining authority has not given any justification or cogent
reason for passing of impugned order as to how the activities of the detenu
are prejudicial to the maintenance of public order; hence the detention order
has no proximity with the procedure as envisaged under law. It is also stated
that the right of life is a fundamental right of an individual and its protection
needs paramount consideration given ample powers to the constitutional
Courts as well as Civil Court of the country to provide safeguards to its
3
HCP No. 54/2025
citizens and to protect the right of life of an individual within all the circles
of life of a human being, as such, the impugned order is bad in law and
deserved to the quashed. It is also averred that grounds of detention are
replica of dossier and unequivocally reflects and shows non-application of
mind on the part of detaining authority. It is being also stated that it is
mentioned in grounds of detention that detenu has been released on bail in
the FIRs shown therein but respondent has not made any mention as to
whether prosecution had ever sought cancellation of bail of detenu on the
ground that after released on bail, detenu again committed the crime.
8. Per contra, learned counsel for respondents insists that detention
order has been passed on subjective satisfaction by detaining authority and
detention order is in accordance with law and there is no violation or
infringement of rights guaranteed under the Constitution of India. Hence, he
pleads that petition be dismissed.
9. In the present case, the contention of the learned counsel for the
respondents is that the detenu being a staunch cheater/fraudster/gambler and
has cheated the general masses in District Srinagar and his aim and object is
to create disturbance in social order/public order in the Kashmir valley by
way of his evil designs and there are serious allegations levelled against the
detenu as he is said to have been creating a feeling of insecurity, pain and
fear in the minds of the general public and disturbing the peace, law and order
in the UT of J&K, especially in Srinagar and in this regard the criminal cases
are already going on against the detenu under various provisions of law and if
he is found guilty, he will be convicted and given appropriate sentence. May
be, offences allegedly committed by the detenu attract the punishment under
the prevailing laws but that has to be done under the prevalent laws and taking
detention cannot be made a substitute for ordinary law and absolve the
investigating authorities of their normal functions of investigating the crimes,
which the detenu may have committed. After all, the preventive detention
cannot be used as an instrument to keep a person in the perpetual custody
without trial.
10. Perusal of grounds of detention as also detention record, particularly
Dossier of Senior Superintendent of Police, Srinagar, the detenu has been
shown involved in five FIRs registered at police station Harwan in respect of
different offences ranging from Sections 380 to 420 IPC Section 13 Gambling
4
HCP No. 54/2025
Act. The activities alleged to have been committed by detenu cannot be said
prejudicial to maintenance of public order. Learned counsel for petitioner has
rightly stated that detenu may have by his activities posed a problem of law and
order for law enforcement agencies but such alleged criminal activities
attributed to detenu do not have potential of disturbing public and tranquillity
so as to bring activities of detenu within the sweep of “public order”.
11. The distinction between a public order and law and order has been
discussed in Ram Manohar Lohia v. State of Bihar and Another, (1966) 1
SCR 709:
“54. … Public order if disturbed, must lead to public disorder. Every breach of the
peace does not lead to public disorder. When two drunkards quarrel and fight
there is disorder but not public disorder. They can be dealt with under the powers
to maintain law and order but cannot be detained on the ground that they were
disturbing public order. Suppose that the two fighters were of rival communities
and one of them tried to raise communal passions. The problem is still one of law
and order but it raises the apprehension of public disorder. Other examples can be
imagined. The contravention of law always affects order but before it can be said
to affect public order, it must affect the community or the public at large. A mere
disturbance of law and order leading to disorder is thus not necessarily sufficient
for action under the Defence of India Act but disturbances which subvert the
public order are…. 55. It will thus appear that just as „public order‟ in the rulings
of this Court (earlier cited) was said to comprehend disorders of less gravity than
those affecting „security of State‟, „law and order‟ also comprehends disorders of
less gravity than those affecting „public order‟. One has to imagine three
concentric circles. Law and order represents the largest circle within which is the
next circle representing public order and the smallest circle represents security of
State. It is then easy to see that an act may affect law and order but not public
order just as an act may affect public order but not security of the State.
12. It could thus be seen that a Constitution Bench of the Supreme Court
in unequivocal terms held that every breach of peace does not lead to public
disorder. It has been held that when a person can be dealt with in exercise of
powers to maintain the law and order, unless the acts of the proposed
detainee are the ones which have the tendency of disturbing the public order
a resort to preventive detention which is a harsh measure would not be
permissible.
13. The Supreme Court in Banka Sneha Sheela v. State of Telangana
and ors, (2021) 9 SCC 415, confronted with a case of preventive detention
ordered by the State of Telangana on almost similar grounds. There were as
many as five FIRs all registered against the detenue therein under Sections
420, 406 and 506 IPC and in all the FIRs the detenue was granted
anticipatory bail. The detention was ordered primarily on the ground that
remaining at large of the detenue would be detrimental to public order. The
Supreme Court, in paragraphs No. 14, 15 and 19 has held thus:-
5
HCP No. 54/2025
“14. There can be no doubt that for “public order‟ to be disturbed, there
must in turn be public disorder. Mere contravention of law such as
indulging in cheating or criminal breach of trust certainly affects “law and
order‟ but before it can be said to affect “public order‟, it must affect the
community or the public at large.
15. There can be no doubt that what is alleged in the five FIRs pertain to
the realm of „law and order‟ in that various acts of cheating are ascribed
to the Detenu which are punishable under the three sections of the Indian
Penal Code set out in the five FIRs. A close reading of the Detention
Order would make it clear that the reason for the said Order is not any
apprehension of widespread public harm, danger or alarm but is only
because the Detenu was successful in obtaining anticipatory bail/bail from
the Courts in each of the five FIRs. If a person is granted anticipatory
bail/bail wrongly, there are well-known remedies in the ordinary law to
take care of the situation. The State can always appeal against the bail
order granted and/or apply for cancellation of bail. The mere successful
obtaining of anticipatory bail/bail orders being the real ground for
detaining the Detenu, there can be no doubt that the harm, danger or alarm
or feeling of security among the general public spoken of in Section 2(a)
of the Telangana Prevention of Dangerous Activities Act is make believe
and totally absent in the facts of the present case.
19. To tear these observations out of context would be fraught with great
danger when it comes to the liberty of a citizen under Article 21 of the
Constitution of India. The reason for not adopting a narrow meaning of
“public order” in that case was because of the expression “in the interests
of” which occurs to Article 19(2) to 19(4) and which is pressed into
service only when a law is challenged as being unconstitutional for being
violative of Article 19 of the Constitution. When a person is preventively
detained, it is Article 21 and 22 that are attracted and not Article 19.
Further, preventive detention must fall within the four corners of Article
21 read with Article 22 and the statute in question. To therefore argue that
a liberal meaning must be given to the expression „public order‟ in the
context of a preventive detention statute is wholly inapposite and
incorrect. On the contrary, considering that preventive detention is a
necessary evil only to prevent public disorder, the Court must ensure that
the facts brought before it directly and inevitably lead to a harm, danger or
alarm or feeling of insecurity among the general public or any section
thereof at large.”
14. Earlier the Supreme Court in the case of Rekha v. State of T. N,
(2011) 5 SCC 244 also discussed the nature and scope of preventive
detention. Paragraphs No. 29 and 30 of the judgment are relevant and,
therefore, set out below:-
“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
6HCP No. 54/2025
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 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.”
15. The situation prejudicial to the maintenance of “public order” arises
when the activities of the detenue are such as may have the tendency to
disturb an even tempo of life of the community and public at large. It is not
the criminal act in itself, howsoever heinous it may be, but the manner in
which such criminal act is committed and the impact it has on the public at
large are the factors which determine as to whether a particular criminal act
is only a criminal act simpliciter or an act prejudicial to the maintenance of
public order.
16. The offence directed against an individual or a group of persons, may
be, on several occasions, cannot be branded as criminal activity prejudicial
to the maintenance of public order unless the manner in which such offence
is committed and impact it leaves on the public at large has the potential of
disturbing even tempo of public life. A single act committed in a diabolic
manner, impacting the spectators and passers by, may be sufficient to
constitute an activity prejudicial to the maintenance of public order.
17. As to whether a case would amount to threat to the public order or as
to whether it would be such which can be dealt with by the ordinary
machinery in exercise of its powers of maintaining law and order would
depend upon the facts and circumstances of each case. For example, if
somebody commits a brutal murder within the four corners of a house, it will
not be amounting to a threat to the public order. As against this, if a person
in a public space where a number of people are present creates a ruckus by
his behaviour and continues with such activities, in a manner to create a
terror in the minds of the public at large, it would amount to a threat to
public order. Though, in a given case there may not be even a physical
attack.
18. From perusal of the grounds of detention served upon the petitioner
detenu, it is difficult to arrive at a conclusion that the criminal activities
alleged to have been committed by detenu have created such impact. Except
that single line in the grounds of detention that the detenu has created fear
psychosis amongst the public, there is nothing stated in the grounds as to the
7
HCP No. 54/2025
manner the detenu carries his activities and impact of his activities, if any,
on the tempo of life of public at large. The police have registered several
FIRs for the commission of offences by the detenu. The detenu has been set
at liberty by the competent Court by granting him bail in all the matters. It is
not the case of the respondents that the prosecution has moved an
application for cancellation of bail even in a single case. If, despite
registration of several FIRs, detenu is not deterred from repeating his
activities, the fault lies with the law and order agencies who have failed to
contain the activities of the alleged criminals like the detenu. It is for the
prosecution to explain as to how and under what circumstances the detenu
has been bailed out in a number of cases registered against him. Either the
investigation conducted has remained faulty or the prosecution has not been
conducted effectively, which has resulted in grant of bail to the detenu.
19. To sum up, the threat posed by the alleged activities of the detenu is a
clear law and order problem to be taken care of by the law enforcing
agencies and is clearly not a case where the activities attributed to the detenu
could be termed as prejudicial to the maintenance of “public order”.
20. For the reasons discussed above, Detention Order No. DMS/PSA/ 43/
2024 dated 03.12.2024, passed by District Magistrate, Srinagar, is quashed.
Respondents are directed to release the detenu forthwith, provided he is not
required in any other case.
21. Disposed of.
22. Registry to return detention record to learned counsel for respondents.
(Vinod Chatterji Koul)
Judge
Srinagar
01.08.2025
(Qazi Amjad, Secy)
Whether the order is reportable: Yes/No.
QAZI AMJAD YOUSUF 8
I attest to the accuracy and
authenticity of this document
04.08.2025 14:29 HCP No. 54/2025