Jammu & Kashmir High Court
Suraj Masih vs The Union Territory Of Jammu & Kashmir on 1 August, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.75/2025
Reserved on: 24.07.2025.
Pronounced on:01.08.2025
Suraj Masih, Age 29 years ....Petitioner(s)/Appellant(s)
S/O Roshan Lal,
R/O Village Hariachack,
Tehsil Marheen, District Kathua
through his mother Rojje Devi.
Through :- Mr. K. S. Johal, Sr. Adv. with
Mr. S. S. Johal, Advocate.
V/S
1. The Union Territory of Jammu & Kashmir ....Respondent(s)
Through Commissioner/Secretary to
Government, Home Department,
Civil Secretariat, Srinagar/Jammu
2. The Divisional Commissioner, Jammu.
3. The District Magistrate, Kathua
4. Senior Superintendent of Police, District Kathua.
5. Superintendent/Incharge, District Jail, Udhampur.
Through :- Mr. Suneel Malhotra, GA
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner namely Suraj Masih S/O Roshan Lal, R/O Village
Hariachack, Tehsil Marheen, District Kathua (for short „the detenue‟) has
challenged the detention Order No.PSA/157 dated 20.05.2025 (impugned
order), issued by respondent No.3, District Magistrate, Kathua (hereinafter to be
referred as “the detaining authority”), whereby he has been placed under
preventive detention, in order to prevent him from acting in any manner
prejudicial to the maintenance of „public order‟.
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2. Petitioner has raised many grounds to assail the impugned order. It is his
contention that Detaining Authority though referred earlier cases from the years
2018, 2021 and 2024, as found in the Grounds of Detention, what was placed
before him was only the copies of reports in those matters. Had the Authorities
placed the outcome of such matters vis-à-vis acquittal of petitioner, in case FIR
No.31/2018 u/s 48(a) of the Excise Act registered with Police Station, Rajbagh;
in case FIR No.136/2021 vide judgment dated 14.12.2023 passed by learned
Judicial Magistrate, Hiarnagar; and the petitioner was on bail in case FIR
No.06/2024 and case FIR No. 202/2024; that vague entries in the shape of DDRs
have been recorded at Police Station Rajbagh; that the criminal antecedents
relied upon for the purpose of passing the order of detention do not have the
direct nexus to immediately detain the petitioner; that the documents supplied to
the petitioner, in Urdu were not explained to the petitioner in the language he
understands; that he was prevented from making an effective and reasonable
representation to the respondents in view of insufficient material provided to
him; that he was not informed about his right to make representation to the
detaining authority as well as government. It is also contended that the
allegations attributed to the petitioner in the grounds of detention may be a „law
and order‟ problem but do not qualify within the definition of „Public Order‟
under Section 8 of the J&K Public Safety Act 1978; that there is total non
application of mind by the detaining authority as the petitioner stands already
discharged and acquitted in the cases mentioned in the grounds of detention in
some cases and is on bail in the remaining. Lastly, it is prayed that the petition be
allowed and the impugned detention order be set aside.
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3. The respondent No.3, in his counter affidavit, has controverted the
averments made in the petition and submitted that the detenue is a hardcore
criminal, desperate character and history sheeter and has been involved in the
commission of organized crime for the past many years and was still continuing
which is leading to eruption of terror among the general public, therefore,
keeping in view the criminal/anti-social activities of the detenue, detention order
was passed by the respondent no.3 as his remaining at large involves a greater
risk to the maintenance of Public Order; that the detention warrant along with
grounds of detention was properly executed through PSI Swaran Singh of P/S
Rajbagh under proper acknowledgement of the detenue and he was fully made to
understand in the language he understands; that the detenue was also informed
that he can make representation to the Govt. as well as detaining authority
against the detention order, if he so desires; lastly, it is prayed that the petition be
dismissed and the impugned detention order be upheld as the same has strictly
been passed as per the provisions of J&K Public Safety Act. The respondents
have produced the detention records in order to support the contentions raised in
the counter affidavit.
4. Heard learned counsel for the parties at length, perused the detention
record and considered.
5. 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
order, dossier of detention, grounds of detention and copies of FIR and other
relevant documents was supplied to the detenue. As per record, the detenue
received copy of Warrant, Grounds of detention along with letter in English,
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Dossier & FIR, statements along with other documents related to detention (total
52 leaves) from executing officer PSI Swaran Singh of Incharge Police Post
Marheen, P/S Rajbagh in presence of Assistant Superintendent District Jail,
Udhampur, which were read over in English and explained to the detenue in
Dogri/Hindi 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 Swaran Singh in the detention record, to
the aforesaid extent.
6. The grounds of detention clearly show that the detenue was involved in
cases with serious offences; that although the detenue has been bailed out by the
court, the conditions of bail vis-à-vis he shall not repeat the same act in future
during the period is brazenly violated with impunity and the detenue has
discreetly carried out activities in contravention of the bail conditions; that there
is every apprehension that the detenue would indulge in more such criminal
activities and pose a grave threat to the maintenance of public order, therefore,
he cannot be let off as scot-free; that four FIRs and three DDRs containing
offences serious in nature are registered/recorded against the detenue; that the
impugned detention order is passed by the detaining authority on the basis of
dossier submitted by the SSP concerned wherein 04 FIRs and three DDRs
registered against the detenue at Rajbagh and Kathua Police Stations, showing
the detenue‟s continuous involvement in criminal/anti-social activities without
any respect of substantive law, thus, disturbing the peace and tranquility of the
area and maintenance of law and order in District Kathua. Keeping in view the
activities of the detenue, the Detaining Authority after due application of mind,
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by arriving at subjective satisfaction, issued the impugned order of detention,
which cannot be found fault with.
7. 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.
8. 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 & Ors
[(2005) 8 SCC 276] and Union of India & Anr v. Dimple Happy Dhakad
[AIR 2019 SC 3428] has held that “an order of detention is not a 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
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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.
9. 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
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
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as the grounds 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.
10. So far as the contention of the detenue that he was prevented from
making representation to the detaining authority as well as government as the
documents supplied to the detenue were not read over and explained in the
language he understands is concerned, the said contention has been effectively
addressed by this court in the preceding paragraphs and need not be reiterated
here again. Thus, contention of the detenue that he was unable to file
representation for the aforesaid reason pales into insignificance.
11. 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 Safety Act, in view of serious allegations, of which he was
charged.
12. The Detaining Authority has applied its mind by going through all the
material, past conduct of the detenue against whom 04 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
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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.
13. 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.
14. 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 aims and objects 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
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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.
15. 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 zealously
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.”
16. 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
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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.
17. Viewed thus, there is no ground to interfere in the impugned order of
detention. The petition lacks merit and is dismissed, as such.
18. The detention record be returned to the respondents through their
counsel.
(MA CHOWDHARY)
Jammu: JUDGE
01.08.2025
Raj Kumar
Whether the order is speaking? Yes
Whether the order is reportable? Yes
Raj Kumar
2025.08.01 16:20
I attest to the accuracy and
integrity of this document