HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No. 5/2025 CM No. 83/2025 Arshad Begum @Arsho Th. Mohd. Shabir …..Appellant(s)/Petitioner(s) Through: Mr. Sanchit Verma, Advocate. vs UT of J&K and others .…. Respondent(s) Through: Mr. Sumeet Bhatia, GA. Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 24.07.2025 ORAL 1. Arshad Begum @ Arsho claimed to be a widow of one Jamal Din, R/O Rai Chak, Tehsil Basantgarh, stands detained under and in terms of the provisions of Public Safety Act, 1978 (for short „the Act of 1978) in terms of detention order No. 10-PSA-2024 dated 29.11.2024 (for short „the Impugned order‟) passed by the District Magistrate, Udhampur respondent-2 herein (for short „the Detaining Authority‟). 2. The impugned order of detention is being challenged by the petitioner while maintaining the instant petition under Article 226 of the Constitution, seeking a writ of Habeas Corpus through her son namely Mohd. Shabir. 3. The petitioner has urged the following grounds of challenge in the petition against the impugned order:- 5.1. That from the documents being provided to the petitioner, it is crystal clear that the detaining authority at the time of passing the detention order has failed to appreciate the fact that there is no live or recent incident Serial No. 2 2 HCP No. 5/2025 CM No. 83/2025 which remotely prompted the detaining authority in passing the detention order. The allegations levelled against the detenue are vague without any concrete material evidence. It is respectfully submitted here, that the detaining authority, has in a mechanical manner without application of mind passed the impugned detention order, where under without any cogent material on record, it has observed that the detenue will continue to indulge in acts prejudicial to the security of state, most particularly Tehsil Basantgarh and will also flame terrorist activities within the area. The liberty of the petitioner/detenue will amount to making the life of peace loving citizens vulnerable and also will endanger the general security of society at large, per contra, there is nothing on record to suggest or justify the observations made by the detaining authority in the detention order as the same are unwarranted and arbitrary. 5.2. That the impugned order of detention has been passed in mechanical and casual manner without application of mind as there is no material much less a material which justifies the issuance of detention order against petitioner under the J&K Public Safety Act. The omission of the detention authority to even remotely mention of the criminal activities of the detenue, raises a clear presumption that the detention order has been passed without application of mind, and on the basis of the detention record which are self-contrary to the grounds of detention. 5.3. That the detention order has been passed without application of mind, it is respectfully submitted here that, alleged facts mentioned in the grounds of detention, cannot be any stretch of imagination becomes a link to detain the petitioner and the same has been fabricated by the police to justify its illegal Act. The order impugned does not specify any specific allegation against the detenue and does not show how the detenue is involved in the allegations alleged against the detenue. It is a case where due to insufficient grounds of detention, the detaining authority has mechanically observed that, “there exists every likelihood that the subject will continue to indulge in acts prejudicial the security of state most particularly Tehsil Basantgarh and will also flame terrorist activities within the area. The liberty of the subject/petitioner will amount to making the lives of the peace loving citizen vulnerable and also will endanger the general security of the society at large, therefore in order to stop the petitioner/subject from indulging in such activities and to safeguard the lives and 3 HCP No. 5/2025 CM No. 83/2025 property of innocent persons, detention of the detenue under the provisions of the J&K Public Safety Act has become exigent/imperative.” It becomes overbearingly important to mention that in the detention order and ground of detention, there is no convincing material which discloses the basis of the aforementioned observation against the detenue. On this count the impugned order deserves to be quashed. 5.4. The allegations/grounds of detention are vague and on mere ascertain of detaining authority, where no prudent man can make an effective representation against these allegations and can only be defended in the court of law. It is important to mention here that the grounds mentioned in ground of detention have no nexus with the detenue/petitioner and has been fabricated by the police in order to justify illegal action of detaining the detenue/petitioner. It is pertinent to mention here that the grounds of detention were never explained to the detenue in her local language (Urdu/Dogri), which she could have understood. 5.5. That the respondents have not initiated any action against the detenue until now, if there was any violation of law or for the activities of the detenue which were prejudicial to the security of the state as alleged by the respondents, the petitioner would have been booked under the penal/ordinary law of land, but that has not been done till date and instead the respondent no. 2 had issued the order of detention. It is a beaten law that such detentions cannot be made a substitute for the ordinary law, and absolve the investigating authorities of their normal functions of investigating crimes which the detenue may have committed. The preventive detention cannot be used as an instrument to keep the person in perpetual custody without any material evidence and on the basis of vague allegations. Hence, it was obligatory on the detaining authority to state the reasons and the recent activities, which became imperative in passing the impugned order. 5.6. That in absence of material supporting the aforesaid allegations against the detenue, or specifying details of such incident, it cannot be held that the activities of the detenue are prejudicial to the security of the state nor there is any material evidence in the detention record to substantiate vague allegations against the detenue. All the allegations levelled in the ground of detention are vague without any substance and basis and cannot be relied upon while issuance of the order of detention, as the detaining 4 HCP No. 5/2025 CM No. 83/2025 authority has not arrived at the subjective satisfaction, on objective basis before passing the impugned order. It may be noted here that excluding general vague allegations, there is no material on record which shows that the detenue is acting in any such manner which is prejudicial to the security of the state. “Liberty is not a gift of the state to its citizens; considering that the powers exercise by the detaining authority, flows from the constitution of India, which in itself is a Charter of power granted by Liberty and not a Charter of Liberty Granted by Power”, the petitioner being a citizen of republic of India is entitled to rights granted to the detenue under the Constitution of India, and considering that, in preventive detention jurisprudence whatever little safeguards of the Constitution and the enactments authorizing such detention, provide utmost importance and must be strictly adhered to. 5.7. 5.7. That the perusal of the grounds of detention being provided to the petitioner, it is abundantly clear that the same are vague as there is no specific reference to date, time place and act of the petitioner mentioned which constraints the detaining authority to issue the impugned detention order, thereby detaining the petitioner under the J&K Public Safety Act and the allegations being levelled against the petitioner are unsubstantiated and unverifiable, as such, the detention order is bad and requires to be quashed. 5.8. That detention order impugned is bade and the ground of detention being projected, appears to be forceful and vague, as there is no mention of particulars of place, time date or, as to how the petitioner is involved in any anti- national activities, or, that the acts of the petitioner will be prejudicial to the security of the state. The grounds being vague and lacking in material particulars as such, the detention could not make an effective representation against here detention on the basis of these vague allegations, without any material in support of the same. Thus, the same violation the Constitutional guarantees envisaged under Article 22(5) of the Constitution, and the Hon’ble Supreme Court in decision reported in “1989 3 SCC 590, titled Jahangirhan Fazal Khan Pathan Versus The Police Commissioner”, held that such detention order is illegal and unsustainable. 5.9. That perusal of grounds of detention issued by respondent no. 2 and dossier issued by the respondent no. 3 will make it abundantly clear that the grounds of detention 5 HCP No. 5/2025 CM No. 83/2025 are replica of with interplay of some words here and there exhibits non application of mind in the process of deriving of subjective satisfaction as such the order impugned is bad and required to be quashed. 5.10. That even otherwise as per the version of the respondents the allegations levelled against the detenue are purely criminal in nature and the detaining authority has enormously fail to justify as to how the law of the land is not sufficient to deal and deter the detenue from indulging in activities as alleged. 5.11. That is is an admitted case that the petitioner is an illiterate person and the grounds of detention order were couched in a hyper-technical language which was beyond here comprehension and the detaining authority was under legal obligations to furnish the grounds of detention to the detenue, in her local language (Urdu/Dogri) to enable her to make an effective and purposeful representation and even otherwise the grounds of detention has not been explained to the petitioner in the language which she understands thereby violating her constitutional and statutory rights to make effective representation. 5.12. That it is an admitted position of fact, that there is nothing in the record placed by the respondent no. 3 before the detaining authority which indicates, that the detenue had involvements in any sort of alleged activity in recent times, other than vague allegations. The allegations against detenue are that she is acting in a manner which is prejudicial to the security of the state. However, on the contrary, there is nothing in the detention record to suggest that the detenue has indulged in any activity as alleged. 5.13. That the District Magistrate has also failed in reporting the fact of detention of the Petitioner to the Government forthwith for according its approval u/s 8 of J&K Public Safety Act, 1978; as such the order of detention of the Petitioner is liable to be set aside. The Hon’ble Supreme Court had the occasion to emphasize the importance of the expression forthwith in preventive detention jurisdiction in Sk. Salim v. The State of West Bengal (1975) 1 SCC 653 as under; “The requirement that the District Magistrate or the other officers making the order of detention shall forthwith report the fact of making the order to the State Government can therefore admit of no relaxation, especially because it has a distinct and important purpose to serve. The 12 days period which the Act in normal circumstances allows to the State Government for approving the detention order is 6 HCP No. 5/2025 CM No. 83/2025 evidently thought to be reasonably necessary for enabling the Government to consider the pros and cons of the order. Delay on the part of the District Magistrate or the other officers in reporting to the State Government the fact of making the detention order would inevitably curtail the period available to the State Government for approving the detention order. The period of 12 or 22 days, as the case may be, which is referred to in Section 3(3) runs from the date on which the order of detention is made and not from the date on which the fact of making the order is reported to the State Government. Such a delay may conceivably lead to hurried and cursory consideration of the propriety or justification of the order and thereby impair a valuable safeguard available to the detenue. A liberal construction of the requirement that the officer making the order of detention shall forthwith report the fact to the State Government is therefore out of place.” The impugned order of detention deserves to be set aside on this ground also. 5.14. That the grounds of detention on which the Petitioner has been detained are vague, uncertain, untrue, baseless, unfounded and ambiguous and lack in material particulars and details. 5.15. That the order of detention will make it abundantly clear that the petitioner has not been made aware of her right to make representation against the detention order to the detaining authority. On this ground also, the detention order is bad and requires to be set aside. 5.16. That the constitutional and statutory safeguards guaranteed to a person detained under preventive detention law and meaningful unless and until the detenue is made aware of and furnished all the materials that weighed with the detenue authority while making detention order. In the instant case, the petitioner has only being provided with the copy of order of detention, grounds of detention, copy of dossier and copies of DDR report. It is pertinent to mention here that perusal of the DDR will make it abundantly clear that there is not an iota of allegations against the petitioner which justifies here detention under the J&K Public Safety Act. 5.17. That the detaining authority has not provided a complete material to the petitioner on which it has relied while ordering the detention of the petitioner thus made the petitioner unable to exercise her constitutional and statutory rights guaranteed under Article 22(5) of 7 HCP No. 5/2025 CM No. 83/2025 constitution of India and Section 13 of J&K Public Safety Act. The Hon’ble Supreme Court of India had the occasion to emphasize the importance of the furnishing all the materials that weight with the detenue authority while making detention order, in case titled “Union of India versus Ranu Bandari” decision reported in 2008 (17) SCC 348 has held while deciding the question as to whether it is mandatory to supply all copies of documents relied by detaining authority has held as under:- “27. This brings us to the next question as to whether even such material as had not been considered by the Detaining Authority while issuing the detention order, is required to be surprised to the detenue to enable him to make an effective representation against his detention. “28. The decisions cited by the Learned Additional Solicitor General in support of his contentions that all documents mentioned in the detention order were not required to be served on the detenu, such as in J. Abdul Hakeem’s case (Supra), takes note of the earlier decisions in Ahamedkutty’s case (Supra) and Radhakrishnan Prabhakar’s case (Supra) which had make it mandatory for the Detaining Authority to supply copies of all documents which had been relied upon by the Detaining Authority to the detenu, whether he had knowledge of their contents or not. Of course, in Radhakrishnan Prabhakar’s case (Supra) it was also made clear that there is not legal requirement that a copy of every document mentioned in the order has to be supplied to the detenu. What is, therefore, imperative is that copies of such documents which had been relied upon by the Detaining Authority for reaching the satisfaction that in the interest of the State and its citizens the preventive detention of the detenu is necessary, have to be supplied to him. Furthermore, if in this case, the detenu’s representation and writ petition had been placed before the Detaining Authority, which according to the detenu contained his entire defence to the allegations made against him, the same may have weighed with the Detaining Authority as to the necessity of issuing the order of detention at all. 29. We are inclined to agree with the submissions made on behalf of the respondent that, notwithstanding the nature of the allegations made, he was entitled to the assurance that at the time when the detention order was passed all the materials, both 8 HCP No. 5/2025 CM No. 83/2025 for and against him, had been placed for the consideration of the Detaining Authority and had been considered by it before the detention order was passed, having particular regard to the orders passed by the Settlement Commission appointed under the provisions of the Customs Act, 1962, which absolved the detenu from all criminal prosecution. 30. In the instant case, as some of the vital documents which a direct bearing on the detention order, had not been placed before the Detaining Authority, there was sufficient ground for the detenu to question such omission. We are also of the view that on account of the non-supply of the documents mentioned hereinabove, the detenu was prevented from making an effective representation against his detention.” The case of the detenu covered by the dictum of the above judgment rendered by the Hon’ble Supreme Court, and the impugned order of detention being result of non-application of mind and thus perverse deserves to be set aside on this ground alone. 5.18. that it may be noted here that due to non-supply of material which the respondent no. 2 (District Magistrate, Udhampur) had relied upon while directing detention, to the petitioner, has deprived the fundamental right guaranteed under Article 22(5) of the Constitution of India, to make an effective representation to the government against her detention. It is submitted here that the representation contemplated under Article 22(5) of the Constitution of India and Section 13 of Jammu and Kashmir Public Safety Act, 1978 may not be effective unless the detenue had been apprised of all the material which had entered the mind of detaining authority while contemplating exercise of jurisdiction under section 8 of Jammu and Kashmir Public Safety Act, 1978 as such the impugned order violates the fundamental right to liberty of the petitioner. The non-supplying of material to the petitioner has resulted in prejudice to the detenue in commenting on the material relied upon by the District Magistrate to make effective representation against the said detention order. It is pertinent to mention here that the petitioner has made a representation to the Government despite of the fact that material which weight before the detaining authority in passing the detention order impugned has not been provided to the petitioner and till date the outcome of the representation has not been communicated to the petitioner. Copy of the representation along with postal receipts are collectively marked and 9 HCP No. 5/2025 CM No. 83/2025 enclosed as Annexure-II. Hence, the order impugned is in itself liable to be quashed on the ground that the same is unsustainable being violative of Article 22(5) of Constitution of India read with section 13 of Jammu and Kashmir Public Safety Act, 1978. 5.19. That the Daily Diary Reports are vague and bereft of details of activities of the petitioner which necessitated the issuance of detention order could not have been relief upon the respondent no. 2 while issuing the detention order. 5.20. That the Daily Diary Reports being provided to the petitioner will make it abundantly clear that there is no adverse entry against the petitioner and all the DDRs are vague and bereft of necessary details in respect of specific activities of the petitioner, which necessitated the issuance of detention order, as such, the said DDRs could not have been relied upon by petitioner while issuing the detention order is bad and required to be set aside. 5.21. That the petitioner till date has not been made to understand why she has been detained; further no material is provided to the petitioner so as to enable her to pursue her case. The Right to Liberty as guaranteed under Article 21 of the Constitution can be negated in view of Article 2 (3)(b) of the Constitution which is an exception of Article 21 of the Constitution which is an exception to Article 21 of the constitution. The said exception authorises the concerned authorities to pass preventive detention, but while passing detention order, such power shall be exercise in a manner which may not have the trappings of depriving a person of the guaranteed liberty. In short, an exceptional case has to be made out for passing the preventive order but while doing so procedural safeguard are to be respected. Breach in observing the procedural safeguard gives right to the detenue to claim that she has been prejudice as her liberty has been curtailed in contravention to the procedure established by law. In the present case the procedural safeguards have been flouted to air by the authority, the petitioner was never supplied with the material relied by the District Magistrate for invoking Public Safety Act against the petitioner. It is further submitted that the petitioner is illiterate lady and the detention order and grounds of detention were never read over and explained to the petitioner by the respondents. 5.22. That for all the reasons stated hereinabove and to be stated at the bar, the order of detention of the detenue is liable to he quashed. 10 HCP No. 5/2025 CM No. 83/2025 4. Counter affidavit has been filed by the respondent 2-Detaining Authority to the petition opposing the petition on the premise that upon receipt of the dossier from Senior Superintendent of Police, Udhampur dated 22.11.2024 wherein it had been reported that there is a strong apprehension that the petitioner has affiliations with terrorists organisations raising significant security reasons and being a resident of remote Dhok at Karur Nallah, is in active collaboration with terrorists sharing sensitive information with them about local infrastructure, intelligence and security force movements posing a significant threat to the security of the State, which collaboration has hindered law enforcement and counter of terrorism operations leading to the failure of numerous search operations and escape of the terrorists, necessitate the detention of the petitioner under preventive law and upon examining the whole record furnished by the SSP, Udhampur inasmuch as, having received inputs from intelligence agencies that beyond passive support the petitioner is actively aiding terrorists by providing essential supplies like shelter, ration etc. as the logistic support for the survival of the terrorists in hostile environments inasmuch as the presence of the petitioner found near active search operation areas, the petitioner, as such, was found to be involved in activities prejudicial to maintenance of public order and security of the State, thus, a dire need to prevent the petitioner from continuing with such activities, warrants her detention under preventive law. 11 HCP No. 5/2025 CM No. 83/2025 It is being next stated that all the provisions of the Act stand complied with in letter and spirit while detaining the petitioner including the furnishing of all the relevant documents on the basis of which the petitioner was detained through one Inspector Rashika Sharma, SHO Police Station, Udhampur and that the contends of the detention order and grounds of detention as well were read over to the petitioner and explained to her in Dogri/Kashmiri language, which she fully understood and in acknowledgement thereof, her thumb impression was obtained in this regard and that the petitioner as well came to be informed that she can make a representation against her detention. It is being next contended that the petitioner filed a representation through her son before the Commissioner/Secretary, Home Department, Govt. of UT of J&K against her detention, which representation was duly considered and rejected in terms of order dated 08.01.2025. It is being reiterated that the petitioner was detained as precautionary measure owing to her activities being prejudicial to the maintenance of public order and security of the State. Heard learned counsel for the parties and perused the record. 5. It is significant to mention here that the counsel for the petitioner while making submissions in line with the case set-up in the instant petition, urged three grounds of challenge, notwithstanding the multiple grounds of challenge urged in the petition. 6. The first ground urged by the counsel for the petitioner is that the petitioner came to be detained by the respondents merely on account 12 HCP No. 5/2025 CM No. 83/2025 of suspicion of her being involved in activities prejudicial to the maintenance of public order and security of State, on the premise that the petitioner did not appear before the police agencies wherein she was summoned on 30.10.2024 and 03.11.2024 as is recorded in the DDR‟s of the concerned Police Station and that, as such, the respondents under those circumstances ought to have proceeded against the petitioner under ordinary criminal law for not having responded to her summoning by the concerned police agency, however, the respondents instead have chosen to take recourse to the preventive law by way of as a short-cut measure which is not permissible in law. 7. Learned counsel for the petitioner would secondly urge that even though it is assumed that the petitioner could have been detained by the respondents for the aforesaid reasons under preventive law, yet in the grounds of the detention, the activities alleged and attributed to the petitioner for providing logistic support to the terrorists in the area besides, providing them shelter, food and information about sensitive military operations, no details whatsoever in this regard stand provided in the grounds of detention as to upon which date, time and place the petitioner provided such alleged logistic support to the terrorists, which non-furnishing and providing of such details in the grounds of detention render not only the grounds vague and ambiguous but also deprive the petitioner of making an effective representation against her detention. 13 HCP No. 5/2025 CM No. 83/2025 8. It is lastly contended by the counsel for the petitioner that despite the fact that the grounds of detention were vague and ambiguous, yet the petitioner submitted a representation against her detention through her son and sent the same through registered post to the respondents on 14.12.2024 which came to be received by the respondents on 16.12.2024, however, the said representation came to be belatedly considered and rejected by the respondents while adopting a callous and casual approach. 9. The counsel for the respondents on the other hand, while opposing the aforesaid contentions of the counsel for the petitioner would heavily rely upon the case set-up in the counter affidavit filed to the petition and would insist that the petitioner came to be detained validly and legally in accordance with law, after complying with and fulfilling all statutory and constitutional requirements. 10. In so far as, the aforesaid first and second plea of the counsel for the petitioner is concerned, a closer examination of the grounds as also the detention record produced by the counsel for the respondents would tend to show that no details have been spell out either in the dossier or else in the grounds of detention about the dates of alleged prejudicial activities attributed to the petitioner, the names and particulars of the alleged terrorists, the date and time and inasmuch as the place, the petitioner allegedly provided logistic support, inasmuch as, food and sensitive information to said terrorists. 11. 11. Law is no more res integra in this regard, about these vague grounds and stands settled in series of judgments by the courts that the grounds 14 HCP No. 5/2025 CM No. 83/2025 of detention drawn and framed by the Detaining Authority must in explicit, specific and unambiguous terms detail out the alleged prejudicial activities attributed to the detenue in order to enable the detenue to make an effective representation against the detention and that vague and ambiguous grounds, in essence, deprive a detenue from making an effective representation against the detention, thus in the process infringe the provisions of Article 22 (5) of the Constitution. 12. In so far as the aforesaid last ground/plea urged/raised by the counsel for the petitioner is concerned, it is not being disputed and denied by the respondents that the petitioner did not submit a representation against his detention which came to be received by them on 16.12.2024 and decided on 08.01.2025. The Apex Court in case titled as “Rahmatullah vs. State of Bihar and others” reported in 1979 (4) SCC 559, has in this regard, at Para 4 held as under:- “04. The normal rule of law is that when a person commits an offence or a number of offences, he should be prosecuted and punished in accordance with the normal appropriate criminal law; but if he is sought to be detained under any of the preventive detention laws as may often be necessary to prevent further commission of such offences, then the provisions of Article 22 (5) must be complied with. Sub-Article (S) of Article 22 reads: “When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as as may be, communicate to such person the grounds on which the order has been made shall afford him the earliest opportunity of making a representation against the order.” This Sub-Article provides, inter alia, that the detaining authority shall as soon as may be communicate the grounds of detention and shall afford him the earliest opportunity of making a representation against the 15 HCP No. 5/2025 CM No. 83/2025 order. The opportunity of making a representation is not for nothing. The representation, if any, submitted by the detenu is meant for consideration by the Appropriate Authority without any unreasonable delay, as it involves the liberty of a citizen guaranteed by Article 19 of the Constitution. The non-consideration or an unreasonably belated consideration of the representation tantamounts to non-compliance of Sub- Article (5) of Article 22 of the Constitution.” 13. For what has been observed, considered and analysed hereinabove, the impugned order is not legally sustainable. 14. Accordingly, petition is allowed and the impugned order No. 10- PSA-2024 dated 29.11.2024 passed by the District Magistrate, Udhampur respondent-2 herein under and in terms of the provisions of Public Safety Act, 1978 is quashed with directions to the respondents including the concerned jail authority to release the petitioner from preventive detention forthwith unless is required in any other case. 15. The detention record produced by the counsel for the respondents is returned back to the counsel for the respondents in the open court. 16. Disposed of. (JAVED IQBAL WANI) JUDGE Jammu 24.07.2025 Mahavir Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. Mahavir Singh 2025.08.05 16:39 I attest to the accuracy and integrity of this document