HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No. 53/2025 Rashid alias Mian …..Appellant(s)/Petitioner(s) Through: Mr. M. K. Bhardwaj, Sr. Adv. with Mr. Gagan Kohli, Adv. vs U. T. of J&K and others .…. Respondent(s) Through: Mr. Suneel Malhotra, GA Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER 09.07.2025 ORAL: 1. The instant writ petition has been filed by the petitioner under Article 226 of the Constitution challenging the order of detention bearing No. PSA/152 dated 24.03.2025 (for short the impugned order) passed by respondent 2 (for short the Detaining Authority) under and in terms of the provisions of the J&K Public Safety Act, 1978 (for short the Act). 2. Petitioner has urged the following grounds against the impugned order while maintaining the instant petition: “a. That the detention order is bad, illegal and without application of mind, since the petitioner has been detained by the respondents without providing any sufficient material which includes the copy of the FIRs, statement of the witnesses, list of the witnesses, statement before Judicial Magistrate and other relevant materials which is mandatory as per the provisions of Public Safety Act. The petitioner has been illegally implicated in the offences which he has not committed at all, therefore, the order passed by respondent no 2 on the request of respondent no. 3 is bad and liable to be quashed. b. That the impugned order of detention is otherwise bad, the petitioner has not been supplied all the documents, statements recorded under section 161 of CR.P.C in the F.I.R and translated copy of ground of detention and other relevant materials by the respondent no. 2 and 3. Since the respondent no.2 has passed the 88 2 HCP No. 53/2025 order which is based on F.I.R's,. challan and information report on case diaries, he was under obligation to supply all the material including statements of witnesses and other related documents but the documents which have been supplied to the petitioner are detention order, grounds of detention, dossier, FlRs and copy of the charges only. No statement of witnesses and other relevant material was supplied to the petitioner and more the detaining order was served upon the petitioner after 10 days from the passing of the order. The mandate of section 30 clearly provides that the detaining authority has to communicate the grounds of detention and material within 5 days and in exceptional circumstances not later than l0 days with the reasons to be recorded in writing. The aforesaid provisions of public Safety Act was not complied and therefore the detention order is unsustainable. The Hon'ble Apex court in case titled Abdul Latif Abdul Wahab Sheikh v/s BK Jha & Ors held that the procedural requirements are the only safeguards available to the detenue since the court cannot go behind the subjective satisfaction authority. The procedural requirements are therefore required to be strictly complied with, if any value is to be attached to the liberty of the subject and constitutional rights guaranteed to him in that record. On this count also the order impugned unsustainable in the eyes of law. c. The petitioner is facing trial and he was bailed out by the Court. The respondent no.2 while passing the order of detention has not considered the important fact that the petitioner has been bailed out by the Competent Court. The respondent has not supplied all the material which enables the petitioner to make an effective and meaningful representation Government. It is held by the Hon'ble Supreme Court in a judgment against the order of detention to the reported in AIR 1980 SC175l and AIR 1987 SC 137 that Article 22 clause 5 and 6 provides adequate safeguard to the petitioner and it is incumbent upon the respondents to provide all the material i.e. Copy of Challan, Statement recorded under 161 Cr.P.C. and translated copy of the grounds to the petitioner with the order of detention, as such, the order of detention passed by the respondent no. 2, is bad and liable to be quashed. d. That the detention order is otherwise based on non- application of mind, the respondent no. 2 before passing the order of detention has not applied his mind and reproduced the same grounds of detention in virtue as given in the Police Dossier and it appears that driving of subjective satisfaction has became casualty in the hands of respondent no.2 while passing the order impugned which otherwise prima facie shows that the petitioner was bailed out by the courts in most of the FIRs and just to detain the petitioner, the respondent No.3 had submitted this dossier to the respondent no. 2 and impugned order can be passed without application of mind on the part of the detaining authority, therefore, the order is bad and liable to be quashed. e. That even otherwise also in none of the FIR's which had been mentioned by the respondent in the detention order the petitioner had been convicted by the competent court and is on Bail but the 3 HCP No. 53/2025 respondents in order to defeat the objective of the Bail had passed this impugned order and it shows the disrespect and the contemptuous before which the matters are still pending. The ground of detention does not contain any brief history of Petitioner and dates, thus the petitioner has been detained on the basis of vague grounds and drafted in a routine manner as such the petitioner is failed to make effective representation and as such same violate the right of the petitioner, therefore, the order is bad and liable to be quashed. f. That the respondents while passing the detention order has specifically played emphasis on the daily diary extracts of police station Hiranagar whereby it has been learned that the petitioner is involved in bovine/ drug smuggling within an outside district of Jammu zone and there is every apprehension of law and order problem making and arise. It is pertinent to submit herein that the language and information contained in the extracts of all the DDRs enclosed by the police station Hiranagar are copy paste and word to word same and have been written without application of mind. The petitioner was never informed or put to notice by the authorities with regard to the allegations reproduced in the daily diary reports relied upon by the respondents. On the this count also the order impugned is liable to be quashed. g. That the petitioner has been ordered to be detained at District Jail, Udhampur which is against the Policy decision of Government. The Government of Jammu and Kashmir time to time has taken decision that the petitioner should be lodged in Jail where he can easily meet their family members and which should be nearest. The petitioner has been detained at District Jail, Udhampur where the family members cannot meet him easily because they are residents of Kathua and are poor and illiterate, thus the order is bad and as such is liable to be quashed. h. That the detention of the petitioner is based upon the dossier submitted by respondent No.3 which is without any date and it is not gatherable on which date the respondent No.3 forwarded his dossier to the respondent No.2 which means that dossier was submitted prior and the whole chain of events demonstrate the complete arbitrary exercise of power just to book the petitioner in preventive custody. It is only when the petitioner was provided with the grounds of detention, he came to know about the illegal exercise carried out by the respondents. The Hon'ble Court may very kindly appreciate that in the grounds of detention there is no whisper of petitioner's case details. i. That the detention of the petitioner is also bad in the eyes of law as none of the documents was provided to the petitioner in the 4 HCP No. 53/2025 language which the petitioner understands fully. The forwarding letter, grounds of detention and dossier all were supplied in English language which caused a great prejudice to the petitioner in making an effective representation to the competent authority detention. The non-supply of such documents in Urdu language has against his unlawful infringed Article 22 (5) of the Constitution of India and has rendered the petitioner's detention illegal. The detention illegal. j. That the detention is based upon irrelevant and non-existent grounds and also the detention is based upon ulterior motives and the same is liable to be quashed. k. That even otherwise also the impugned order is bad in the eyes of law because the person who had detain the petitioner must also filed an affidavit r an undertaking whereby he must disclose that he had explained the grounds of detention to the petitioner in the language which is known to the petitioner and in the present case there is no such affidavit or undertaking which is supporting the case. 3. Counter affidavit to the writ petition has been filed by the respondents, wherein the petition has been opposed on the premise that as per dossier received from the Senior Superintendent of Police(SSP), Kathua dated 22.03.2025, wherein the petitioner was described as a hard core criminal involved in organized crime relating to the smuggling of bovine animals for the past many years and continuing therewith the commission of said offences leading to the law and order situation in the area and fear among public besides hurting the religious and communal harmony, the detention of the petitioner got necessitated. It is being further stated that after the passing of the impugned order by the Detaining Authority with full application of mind, the order of detention and grounds of detention were served upon the petitioner and came to be executed through Sub Inspector Maan Singh, PID No. EXJ-865570 of Police Station, Hira Nagar, Kathua under proper acknowledgement from the petitioner, while stating further 5 HCP No. 53/2025 that the ground of detention, the detention warrant and other documents consisting of 79 leaves were read over and explained to the petitioner herein in his language i.e. Dogri/Urdu, which he fully understood and was also informed that he can make a representation to the Government against his detention and involved in FIR No. 57/2023 of Police Station, Hira Nagar, FIR No. 141/2021 of Police Station, Hira Nagar, FIR No. 118/2022 of Police Station, Hira Nagar, FIR No. 23/2022 of Police Station, Billawar and FIR No. 12/2024 of Police Station, Hira Nagar, besides being antisocial/criminal activities entered in the Daily Diaries i.e. DDR No. 24 dated 09.11.2024, DDR No. 16 dated 04.02.2025, DDR No. 26 dated 05.02.2025, DDR No. 14 dated 09.02.2025, DDR No. 26 dated 13.02.2025 and DDR No. 14 dated 20.02.2025 all of Police Station Hira Nagar suggesting that the petitioner has no respect for the law of the land and on account of his continuous involvement in illegal and criminal activities, a sense of insecurity got created in the area and also giving rise to a strong apprehension that the petitioner would indulge in more such antisocial/criminal activities and would become danger to the public peace and tranquillity of the area. Heard learned counsel for the parties and perused the record of detention. 4. According to Mr. M. K. Bhardwaj, learned senior counsel appearing for the petitioner, the impugned order of detention has been passed by the Detaining Authority without application of mind on the asking of the sponsoring agency, the SSP concerned and also without drawing subjective 6 HCP No. 53/2025 satisfaction as to whether the alleged criminal activities attributed to the petitioner in the grounds of detention constitute breach of public order or peace and tranquillity of the area. Mr. Bhardwaj would further contend that the non application of mind of the respondents in general and of the Detaining Authority in particular qua the passing of the impugned detention order is writ large owing to the fact that both the sponsoring agency as well as the Detaining Authority in the grounds of detention have referred to and relied upon five FIRs registered against the petitioner out of which FIR No. 47/2013 and FIR No. 12/2024 both of Police Station, Hira Nagar stand compounded and closed on 30.01.2014 and 01.07.2024 much before the passing of the impugned order of detention and this fact has neither been known to the sponsoring agency/SSP concerned nor to the Detaining Authority. Mr. Bhardwaj would lastly contend that in view of aforesaid serious infirmities, the impugned order of detention is liable to be quashed. 5. On the contrary, Mr. Suneel Malhotra, learned Government Advocate appearing for the respondents while opposing the submissions of Mr. Bhardwaj, would heavily rely upon the counter affidavit filed to the petition and would insist that the order under challenge has been legally and validly passed by the Detaining Authority and as such would seek dismissal of the petition. 6. Insofar as the aforesaid first plea of the learned counsel for the petitioner is concerned, it is manifest from the record in general and the dossier including the ground of detention in particular, that both the sponsoring 7 HCP No. 53/2025 agency/SSP concerned as well as the Detaining Authority have had been oblivious qua the alleged criminal activities of the petitioner as to whether the same constitute activities prejudicial to the maintenance of public order or the same give rise to the breach of peace in the area disturbing the said peace and tranquillity in the area. The said state of affairs on the part of the respondents in general and the Detaining Authority in particular, cannot but said to be rendering the impugned order of detention legally unsustainable. A reference in this regard to the judgment passed by this Court in case titled as Tashi Rabstan vs. State of J&K reported in 1991 KLJ 412 would be relevant, wherein it has been inter alia held that the preventive detention is not a substitute of the punitive action and cannot be resorted to mechanically and that before directing the preventive detention of a person, it has to be seen as to whether the grounds of detention served upon the detenue stand the test of amounting prejudicial to public order or merely intended to preserve law and order. 7. Insofar as the aforesaid second plea of the learned senior counsel for the petitioner is concerned, available on record bears testimony to the fact that FIR No. 47/2013 and FIR No. 12/2024 stand compounded and closed by the court of Munsiff Hira Nagar on 30.01.2014 and 01.07.2024 respectively as the same is manifest from the perusal of CM Nos. 3926/2025 and 3962/2025 filed by the petitioner in compliance to the order dated 01.07.2025 passed by this Court and both the sponsoring agency/SSP concerned as also the Detaining Authority seemingly have been unaware 8 HCP No. 53/2025 about the said position qua the said FIRs which manifestly suggests complete non application of mind on their part. It is also significant to mention here that the power of preventive detention is exercisable within a very narrow limits and law enjoins upon the Detaining Authority that if the ordinary law of the land can deal with the situation, recourse to preventive detention will be illegal. A reference in this regard to the judgment of the Apex Court passed in case tilted as Rekha v State of Tamil Nadu reported in (2011) 5 SCC 244 would be relevant, wherein it has been held that if the ordinary law (Indian Penal Code and other penal statues) can deal with the situation, recourse of the detention law will be illegal. It is equally settled law as laid down by the Apex Court in case titled as Vijay Narayan Singh vs State of Bihar and others, (1984) 3 SC 14, wherein following has been observed by the Apex Court: “It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” 9 HCP No. 53/2025 The Apex Court in case tiled as State of Manipur and others vs Buyamayum Abdul Hanan reported in 2022 SCC Online 1445 at para 24 has held as under: “24. In other words, the right of personal liberty and individual freedom which is probably the most cherished is not, in any manner, arbitrarily to be taken away from him even temporarily without following the procedure prescribed by law and once the detenu was able to satisfy while assailing the order of detention before the High Court in exercise of jurisdiction Article 226 of the Constitution holding that the grounds of detention did not satisfy the rigors of proof as a foundational effect which has enabled him in making effective representation in assailing the order of detention in view of the protection provided under Article 22(5) of the Constitution, the same renders the order of detention illegal and we find no error being committed by the High Court in setting aside the order of preventive detention under the impugned judgment.” 8. Having regard to the aforesaid legal position and what has been analyzed above, it cannot be but be said that the impugned order is not legally sustainable and the judgments relied upon by the counsel for the respondents passed in case titled as Shakeel Mohd. vs. UT of J&K and others, HCP No. 55/2024, decided on 21.11.2024, Sher Mohd vs. UT of J&K and others HCP No. 136/2024, decided on 05.05.2025 and Muntazir Ahmad Bhat vs. U. T of J&K and anr, WP(Crl) No. 105/2021, decided on 12.11.2021, do not lend any support to the case of the respondents set up in the counter affidavit filed to the instant writ petition. 9. For what has been observed, considered and hereinabove, the instant petition succeeds, as a consequence whereof, the impugned order of detention bearing No. PSA/152 dated 24.03.2025 is quashed with a direction to the respondents including the concerned jail authority to release 10 HCP No. 53/2025 the petitioner from the preventive detention forthwith, unless the petitioner is required in any other case. 10. The detention record produced by the counsel for the respondents is returned back in the open court (JAVED IQBAL WANI) JUDGE Jammu 09.07.2025 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Rakesh Kumar 2025.07.14 15:18 I attest to the accuracy and integrity of this document