Page | 1 HCP 158/2025 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 23.07.2026 Pronounced on: 31.07.2026 Uploaded on: 31.07.2026 Whether the operative part or full judgment is pronounced: Full HCP No. 158/2025 Owais Mushtaq Ganie S/O Mushtaq Ahmad Ganie R/O Samboora Tehsil Pampore District Pulwama Through his mother Sara Bano, Aged 53 Years W/O Mushtaq Ahmad Ganie R/O Samboora Tehsil Pampore District Budgam ….Petitioner Through: Mr. S.T. Hussain, Sr. Advocate with Ms. Nida Nazir, Advocate v. 1. U.T. of Jammu and Kashmir Through Principal Secretary to Govt (Home Deptt.) Srinagar 2. District Magistrate, Pulwama …Respondents Through: Mr Jehangir Ahmad Dar, Government Advocate CORAM HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 01) Through the medium of present petition, the petitioner, Sara Bano, W/o Mushtaq Ahmad Ganie, the mother of Owais Mushtaq Ganie S/O Mushtaq Ahmad Ganie R/O Samboora Tehsil Pampore District Pulwama, has challenged detention order bearing No. 24-Conf/DMP/PSA of 2025/177-80 dated 03.05.2025, [hereinafter for short to be referred as “impugned Page | 2 HCP 158/2025 order”], passed by respondent No.2, District Magistrate, Pulwama, whereby Owais Mushtaq Ganie [hereinafter for short to be referred as “detenu”] has been detained under the provisions of Public Safety Act to prevent him from acting in any manner prejudicial to the security of the state. FACTUAL MATRIX: 02) The detenu was stated to have been arrested on 20.04.2025 by Police Station Awantipora for his alleged involvement in case FIR No. 71/2022 for the commission of offences punishable in terms of Sections 302 IPC 7/25 Arms Act, 16, 18.20.23,38 and 39 of ULA (P) of Police Station Pampore, for which he was charge- sheeted and the court of Additional District and Sessions Judge (Special Judge NIA) transferred the same to Juvenile Justice Board, Pulwama, upon having found the accused to be a juvenile. 03) The detenu was thereafter granted bail by the Juvenile Justice Board, Pulwama on January 1st, 2025, subsequent thereto the respondents issued the impugned order which is being challenged by the petitioner, the mother of the detenu, inter alia on the grounds that the detenu has falsely been involved in the aforesaid FIR; the detenu has never been associated with any terrorist organization in any way; no cogent compelling reasons have been given for having invoked the preventive detention against the detenu; the grounds of detention are non-existent, baseless, vague and ambiguous and no prudent man can make an effective representation against his detention on the basis of the said Page | 3 HCP 158/2025 grounds; the detenu was not made to understand the detention material in the language he understands i.e., Kashmiri; the basis of the impugned order is the FIR registered in the year 2022, meaning thereby that the detention order was passed three years later the date of registration of FIR; the detenu, somehow, managed to move a representation which was not considered by the respondents in accordance with law. 04) Upon notice, the respondents appeared and filed the counter affidavit, resisting the claim of the petitioner. It is stated in the counter affidavit that the detenu came to be detained validly and legally, all statutory requirements and constitutional guarantees have been fulfilled and complied with. The contents of the detention order were read over and explained to the detenu in the language he understood and in lieu whereof the detenu subscribed the signatures on the execution order. 05) Heard learned counsel for the parties, considered the submissions made and perused the detention record made available. 06) Although the petitioner has taken number of grounds in the instant petition to assail the impugned order of detention, however the learned senior counsel for the petitioner has laid emphasis on non-application of mind on the part of detaining authority in detaining the petitioner for not having taken into account the bail order of the detenu; there being no fresh activity attributed to the petitioner after his involvement in FIR No. 71/2022; the grounds of detention are vague, vexatious and no Page | 4 HCP 158/2025 compelling reasons for detaining the petitioner were given; the detenu was not given the detention material in the language he understands and that the detenu was not informed of his right to file a representation against his detention. 07) Learned counsel for the petitioner vehemently submits that the order impugned is bad in law having been passed without proper application of mind as the detenu has not been linked with any of the alleged prejudicial activities after his release on bail by the Juvenile Justice Board. He also submits that the involvement of the detenu in case FIR No.71/2022 on the basis whereof impugned detention order has been passed is of the year 2022, as the impugned order has been passed in the year 2025 much later in time. He submits that the impugned order in this way has been passed on stale grounds, the practice that has been deprecated by the Hon’ble Supreme court of India. 08) On the contrary, the learned counsel for the respondents, while defending the impugned order, submits that the concerned agency after noticing the prejudicial activities of the petitioner found it imperative to detain the detenu under preventive law. 09) It appears that the respondents have in fact based their opinion on the contents of the FIR No. 71/2022 and detained the detenu under preventive detention. Therefore, the plea taken by the learned counsel for the petitioner that the detention order in question has been passed on the basis of stale grounds is well- Page | 5 HCP 158/2025 founded. It also transpires from the records that the detenu after his arrest has been bailed out by the Juvenile Justice Board on 01.01.2025, the fact taken note of by the respondents in their reply affidavit also and subsequent to his release as such, no specific subversive activity has been attributed to the detenu anywhere in the records or in the reply affidavit. The submission of the learned counsel for the petitioner that no subjective satisfaction has been derived by the detaining authority as regards the prejudicial activities of the detenu, subsequent to his release on bail, carries substance. 10) The Apex Court, in case titled “Ameena Begum vs. State of Telangana” reported as (2023) 9 SCC 587, has held that the detention order cannot sustain if the same appears to have been issued without deriving subjective satisfaction by the detaining authority. It would be profitable to reproduce paragraph No. 28 of the said judgment hereinbelow: “28. In the circumstances of a given case, a Constitutional Court when called upon to test the legality of orders of preventive detention would be entitled to examine whether (i) the order is based on the requisite satisfaction, albeit subjective, of the detaining authority, for, the absence of such satisfaction as to the existence of a matter of fact or law, upon which validity of the exercise of the power is predicated, would be the sine qua non for the exercise of the power not being satisfied; Page | 6 HCP 158/2025 (ii) in reaching such requisite satisfaction, the detaining authority has applied its mind to all relevant circumstances and the same is not based on material extraneous to the scope and purpose of the statute; (iii) power has been exercised for achieving the purpose for which it has been conferred, or exercised for an improper purpose, not authorised by the statute, and is therefore ultra vires; (iv) the detaining authority has acted independently or under the dictation of another body; (v) the detaining authority, by reason of self- created rules of policy or in any other manner not authorized by the governing statute, has disabled itself from applying its mind to the facts of each individual case; (vi) the satisfaction of the detaining authority rests on materials which are of rationally probative value, and the detaining authority has given due regard to the matters as per the statutory mandate; (vii) the satisfaction has been arrived at bearing in mind existence of a live and proximate link between the past conduct of a person and the imperative need to detain him or is based on material which is stale; (viii) the ground(s) for reaching the requisite satisfaction is/are such which an individual, with some degree of rationality and prudence, would consider as connected with the fact and relevant to the subject-matter of the inquiry in respect whereof the satisfaction is to be reached; (ix) the grounds on which the order of preventive detention rests are not vague but are precise, Page | 7 HCP 158/2025 pertinent and relevant which, with sufficient clarity, inform the detenu the satisfaction for the detention, giving him the opportunity to make a suitable representation; and (x) the timelines, as provided under the law, have been strictly adhered to.” 11) The Apex Court has come down heavily on the functionaries of the State for issuing the detention orders on stale grounds in case titled “Khaja Bilal Ahmad vs. State of Telangana”, reported as (2020) 13 SCC 632, and has held as under: “If the pending cases were not considered for passing the order of detention, it defies logic as to why they were referred to in the first place in the order of detention. The purpose of the Telangana Offenders Act 1986 is to prevent any person from acting in a manner prejudicial to the maintenance of public order. For this purpose, Section 3 prescribes that the detaining authority must be satisfied that the person to be detained is likely to indulge in illegal activities in the future and act in a manner prejudicial to the maintenance of public order. The satisfaction to be arrived at by the detaining authority must not be based on irrelevant or invalid grounds. It must be arrived at on the basis of relevant material; material which is not stale and has a live link with the satisfaction of the detaining authority. The order of detention may refer to the previous criminal antecedents only if they have a direct nexus or link with the immediate need to detain an individual. If the previous criminal activities of the Appellant could indicate his tendency or inclination to act in a manner prejudicial to the maintenance of public order, then it may have a bearing on the subjective satisfaction of the detaining authority. However, in the absence of a clear indication of a causal connection, a mere reference to the pending criminal cases cannot account for the Page | 8 HCP 158/2025 requirements of Section 3. It is not open to the detaining authority to simply refer to stale incidents and hold them as the basis of an order of detention. Such stale material will have no bearing on the probability of the detenu engaging in prejudicial activities in the future.” (bold in original) (underlining ours, for emphasis) (2020) 13 SCC 632.” 12) In view of above, the other grounds raised in the writ petition or urged by the learned counsel for the petitioner need not be adverted to as the petition has succeeded on the above two cardinal principles of law already. 13) The instant petition, in the above background, succeeds and is allowed as such. The impugned order bearing No. 24- Conf/DMP/PSA of 2025/177-80 dated 03.05.2025, passed by respondent No. 2- District Magistrate Pulwama, is held to be not in consonance in law, therefore quashed. The detenue, Owais Mushtaq Ganie S/O Mushtaq Ahmad Ganie R/O Samboora Tehsil Pampore, District Pulwama, shall be released from preventive custody forthwith. 14) The detention record be returned to learned counsel for the respondents. (Moksha Khajuria Kazmi) Judge Srinagar 31.07.2026 “Misba Sajad” Whether the judgment is reportable: Yes/No