HCP No.162/2025 Page 1 of 13 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No.162/2025 CM No.7711/2025 Reserved on: 02.07.2026 Pronounced on: 09.07.2026 Uploaded on: 09.07.2026 Whether the operative part or full judgment is pronounced: Full Shamma, S/o Ali Goheir, R/o Rajpura Mandi, Tehsil Marh District Jammu. …Petitioner(s) Through: Mr. Ajaz Chowdhary, Advocate. Vs. 1. Union Territory of J&K through Principal Secretary, Home Department, Civil Secretariat, Jammu. 2. The District Magistrate, Jammu. 3. The Superintendent, District Jail, Udhampur. …Respondent(s) Through: Mr. Pawan Dev Singh, Dy. AG. CORAM: HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE JUDGMENT 1. Vide detention Order No. PSA 17 of 2025 dated 15.10.2025 (for short ‘impugned order’) passed by respondent No.2- District Magistrate, Jammu, the petitioner was ordered to be detained under preventive custody in terms of Section-8(1) (a) of J&K Public Safety Act, 1978 (for short ‘the Act’) with a view to prevent him from acting in any manner prejudicial to the ‘maintenance of the public order’. 2. Through the medium of the present petition, petitioner seeks quashment of the aforesaid detention order on the HCP No.162/2025 Page 2 of 13 grounds that the detenue, in terms of the impugned order, has been detained under the Public Safety Act, on false and flimsy grounds without any justification; that the detenue has not been provided the material/other relevant documents relied upon by the detaining authority, so as to make an effective representation before the Government as well as to the detaining authority and that the same have not been read over and explained to him in a language he understood; that he was not informed that he can make a representation before the Government as well as to the detaining authority, therefore, a valuable right of the detenue stands defeated; that the petitioner was already discharged from FIR No. 65/2025 at the time when the detention order was issued; that the family members of the detenue was not informed about the detention of the petitioner, in fact, notice of detention was handed over to the brother of the petitioner after four days from the date when the petitioner was taken into custody. 3. Pursuant to notices, counter affidavit has been filed by respondent No. 2-District Magistrate, Jammu, vehemently, resisting the petition. It is contended that keeping in view the prejudicial activities of the detenue, his preventive detention has been ordered so as to deter him from acting or indulging in prejudicial activities; that in the instant case there is enough material against the detenue which is highly suggestive of the fact that the normal law of the land is not sufficient to prevent him from continuing with his anti- national activities and it is evident that the detenue has the HCP No.162/2025 Page 3 of 13 propensity to repeat the commission of crime which was the likelihood of disturbing the public order. 4. 4. Heard learned counsel for the parties, perused the detention record produced by learned counsel for the respondents and considered. 5. The first contention raised by the petitioner is that the detenue has not been provided the material/ other relevant documents on the basis thereof detention order has been passed rendering the petitioner unable to make an effective representation and that the same have not been read over and explained to him in a language he understood. A perusal of the detention record would show that upon execution of the impugned detention order, total 92 leaves of relevant documents came to be supplied to the detenue against proper receipt and the same have been read over in English and explained to the detenue in the languages Urdu/Dogri understood by him. Thus, the contention of the petitioner in this regard is not sustainable. 6. The second contention raised by the learned counsel for the petitioner is that the detenue was not informed about his right to make representation to the Government against the detention order. From the perusal of the Execution Report, it transpires that the detenue was informed about his right to make representation to the Government as well as the detaining authority against the detention order, if he so desired. Thus, the said contention of the petitioner is also not sustainable. HCP No.162/2025 Page 4 of 13 7. Third ground raised by the petitioner is that since the detenue was granted bail in one of the FIRs being FIR No. 65/2025, the preventive detention could not have been ordered. A perusal of the grounds of detention reveals that the factum of grant of bail was very much within the consideration of the detaining authority while arriving at subjective satisfaction. Once the authority has taken note of the bail order and still found the detenue’s activities prejudicial, the detention order would not be rendered illegal. Preventive detention and criminal prosecution operate in different fields. Acquittal or grant of bail in a criminal case does not ipso facto debar the competent authority from passing an order of preventive detention if the authority is satisfied that the activities of a person are prejudicial to the security of the State or maintenance of public order. The Hon’ble Supreme Court in “Haradhan Saha v. State of West Bengal & Ors” reported in (1975) 3 SCC 198 has authoritatively held that prosecution in a criminal case and preventive detention are not synonymous and that an order of detention can validly be passed even when prosecution is pending. Relevant portion in paragraphs No. 32 to 34 of the judgment for the ease of reference is extracted below:- "32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which HCP No.162/2025 Page 5 of 13 prosecution may be launched or may have been launched. An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. 34. The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. State of W. B., Ashim Kumar Ray V. State of W. B.; Abdul Aziz V. District Magistrate, Burdwan and Debu Mahato V. State of W. B. correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of U. P. which is a Division Bench decision of two learned Judges is contrary to the other Bench decisions consisting in each case of three learned Judges. The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a HCP No.162/2025 Page 6 of 13 first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances." Similarly, in “Union of India v. Paul Manickam reported in (2003) 8 SCC 342”, it has been held that merely because a person is in custody or has been granted bail does not preclude the detaining authority from invoking preventive detention laws if there exists compelling necessity for doing so. 8. Fourth ground urged by the learned counsel for the petitioner is that the family members of the detenue was not informed about the detention of the petitioner. From the perusal of the record, it transpires that vide Order No. DMJ/JC/PSA/25- 26/1986-89 father of the detenue, namely, Ali Goheir was informed regarding the detention of the deteue under the provisions of Section 8 of the Jammu and Kashmir Public Safety Act, 1978. In the said order, it has also been mentioned that grounds of detention have also been furnished to detenue HCP No.162/2025 Page 7 of 13 and that he has also been informed about his right to make a representation against the impugned detention order. 9. The detaining authority, before invoking the preventive detention, discussed various grounds for detention, incorporating that the detenue has been involved in drug related crimes under the NDPS Act and is facing charges related to theft and as many as five FIRs bearing FIR No. 69/2024, 150/2021, 32/2022, 65/2025 and 143/2025 have been registered against the detenue; that the detenue’s repeated criminal behavior has caused significant harm to the local community and society as a whole; that the detenue is a habitual offence whose repeated involvement in criminal activities demonstrates that the existing substantive laws have been insufficient in deterring or curbing his unlawful conduct; that the detenue poses a substantial threat to the peace and stability of society; that the detenue’s repeated involvement in lawful activities continues to disturb public order and contributes to growing unrest and disorder within the community. 10. Perusal of the detention record would indicate that the detenue is a habitual criminal/bovine smuggler/drug peddler indulged in various crimes like attempt to murder, land grabbing, illegal transportation of narcotics, theft etc and is involved in multiple criminal cases. It is further asserted in the record that if he is released from custody, he may again indulge in such criminal/unlawful activities. The aforestated reasons persuaded the Detaining authority to curb his HCP No.162/2025 Page 8 of 13 activities to order detention of the detenue under the provisions of Public Safety Act. 11. Right of personal liberty is a most precious right guaranteed under the Constitution of India. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in the case “Maneka Gandhi vs. Union of India, (1978 AIR SC 597)”, is to be just and fair. 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 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. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defense. 12. Framers of the Constitution, however, have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person being held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object are to save 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 as by the time ordinary law is set into motion, HCP No.162/2025 Page 9 of 13 the person, having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent a person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) of the Constitution of India, therefore, leaves scope for enactment of preventive detention law. 13. Referring to the observations made by the Constitution Bench of the Supreme Court in the case of ‘The State of Bombay v. Atma Ram Shridhar Vaidya AIR 1951 SC 157‟ would be advantageous. Paragraph 5 of the said judgment lays law on the point, which is profitable to be reproduced hereunder: “5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (3) the maintenance of supplies and services essential HCP No.162/2025 Page 10 of 13 to the community ......... it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter- mine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court HCP No.162/2025 Page 11 of 13 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.” 14. In accordance with the legal position, afore-stated, settled by the Six-Judge Constitution Bench way back in the year 1951, the scope of looking into the manner in which the subjective satisfaction is arrived at by the detaining authority, is limited. This Court, while examining the material, which is made basis of subjective satisfaction of the detaining authority, would not act as a court of appeal and find fault with the satisfaction on the ground that on the basis of the material before detaining authority another view was possible. 15. The courts do not even go into the questions as to whether the facts mentioned in the grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the courts and that it is not the policy of the law of preventive detention. This matter lies within the competence of the advisory board. 16. Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires. 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. Justification for such detention is suspicion HCP No.162/2025 Page 12 of 13 or reasonable probability and not criminal conviction, which can only be warranted by legal evidence. Thus, any preventive measures, even if they involve some restraint or hardship upon individuals, as held by the Supreme Court in the case „Ashok Kumar v. Delhi Administration & Ors., AIR 1982 SC 1143‟, do not contribute in any way of the nature of punishment. 17. Observing that the object of preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so, the Supreme Court held in the case “Naresh Kumar Goyal v. Union of India & Ors., 2005 (8) SCC 276”, and reiterated in the judgment in a case titled “Union of India & Anr. v. Dimple Happy Dhakad (AIR 2019 SC 3428)” that an order of detention is not a curative or reformative or punitive, but a preventive action, acknowledged object of which being to prevent anti-social and subversive elements from endangering the welfare of the country or security of the nation or from disturbing public tranquility or from indulging in anti-national activities or smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. Rulings on the subject have consistently taken the view that 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. HCP No.162/2025 Page 13 of 13 18. In view of the foregoing discussion and the settled legal position, impugned detention order is upheld and the petition is found devoid of any merit and is, accordingly, dismissed along-with pending application(s). 19. Photocopy of the record, as produced, be returned to learned counsel for respondents. (M A CHOWDHARY) JUDGE JAMMU 09.07.2026 Naresh/Secy. Whether the order is reportable: Yes Whether the order is speaking: Yes Naresh Kumar 2026.07.09 17:53 I attest to the accuracy and integrity of this document