HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP No. 193/2024 Reserved on: 06.06.2025 Pronounced on: 15.07.2025 Mohammad Iqbal Gojar Tedwa, aged 34 years S/o Siraj U Din Tedwa R/o Kulnar Bazipora, Tehsil Ajas, District Bandipora through his father ……. Petitioner(s) Through: Mr. M. I. Qadri, Sr, Advocate with Mr. Naveed Gul, Advocate Versus 1. Union Territory of J&K through Principal Secretary, Home Department , J&K Govt. Civil Sectt. Srinagar 2. District Magistrate, Bandipora 3. Superintendent, Central Jail, Kotbhalwal, Jammu . .…Respondent(s) Through: Mr. Jahingeer A Dar, GA CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE JUDGEMENT 1. Through the medium of this petition, Order no.07/DMB/PSA of 2024 dated 29.03.2024 (impugned detention order) passed by District Magistrate, Bandipora – respondent no. 2, (for short ‘detailing authority’) whereby detenu, namely, Mohammad Iqbal Gojar Tedwa, S/o Siraj U Din Tedwa R/o Kulnar Bazipora, Tehsil Ajas, District Bandipora, has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the security of Union Territory of J&K, is sought to be quashed and detenu set at liberty on the grounds made mention of therein. 2. The case set up by the petitioner in the petition is that the detenu came to be arrested on 05.02.2024 by Police Station Ajas, and kept him illegally under detention and thereafter was lodged in Sub Jail, Bandipora, but was not enlarged on bail. While being in Sub Jail, Bandipora, the detenu came to be detained under J&K Public Safety Act, although he has neither been found involved in any subversive or militant activities nor any FIR stands registered against him relatable to the militant or subversive activity in any Police Station. It is stated in the grounds of detention that the detenu has been 1 HCP no.193/2024 involved in case FIR No.80/2018 under Section 379, 336, 353 RPC read with 06 Forest Act for which challan has been filed in the competent court of jurisdiction and is sub judice. The said case does not relate to maintenance of law and order or security of the State nor has any proximity with the detention of the detenu, and the allegation that the detenu got contacted with PAK trained terrorists is vague, which does not disclose when and where the detenu got contacted with such persons and at which place, is not mentioned in grounds of detention. Besides the abbreviations shown in the grounds of detention, like OGW, PAK, VPNS and other such words, which are incapable of giving exact meaning to the detenu , who is only 5th class pass and does not know the English language, even cannot effectively understand the Urdu language as well, therefore, the grounds of detention are vague, meaningless, as such, the detention order is bad in law and deserves to be quashed. It is being also stated that there are allegations in the grounds of detention that the detenu was providing food, shelter, information to terrorists about movements of security forces. Those allegations, according to petitioner, are vague, absurd and misconceived. It is also averred that detaining authority has passed the impugned detention order mechanically without application of mind. The detenu is neither associated with any organization nor involved in any activity which is prejudicial to the security of Union Territory of J&K. 3. Respondents have filed reply/counter affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the security of the State and, therefore, his remaining at large is a threat to the security of State. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by respondents. The factual averments that detenu was not supplied with relevant material relied upon in the grounds of detention have been refuted. It is insisted that all the relevant material, which has been relied upon by the detaining authority, was provided to the detenu at the time of execution of warrant. 4. To rebut contentions of respondents, the petitioner has filed Rejoinder, wherein it is stated that in the reply/counter, respondents have not mentioned as to in which language the grounds of detention had been explained to detenu. It is being also stated that detenu had made a representation to respondent no.1 but it is not coming to fore from reply/ counter as to whether 2 HCP no.193/2024 the said representation has been disposed of or not. According to petitioner, the contention of respondent no.2 that representation was rejected and the same was conveyed to petitioner is false and correct because there is no proof in this regard on record and produced by respondents. 5. I have heard learned counsel for parties and considered the matter. I have gone through the detention record produced by the counsel appearing for respondents. 6. Learned senior counsel for petitioner states that the grounds of detention are vague, indefinite and cryptic, inasmuch as grounds of detention does not disclose any activity on the basis whereof detention can be ordered and that detaining authority has not attributed any specific allegation against detenu. 7. On the contrary, counsel for respondents while opposing the submissions of Mr. M. I. Qadri, Sr. counsel, would vehemently contend that the order under challenge has been passed by the detaining authority validly and legally owing to the activities the detenu being prejudicial to the Security of the State. 8. It may be appropriate to mention that perusal of impugned detention order reveals that detenu has been detained so as to prevent him from acting in any manner prejudicial to “security of Union Territory of J&K” whereas in Reply Affidavit, respondent no.2 has stated that “detaining authority found it necessary and imperative to invoke the relevant provisions of Act of 1978 and subsequently detain the detenue in order to preclude the detenue from indulging in activities which would be prejudicial to Maintenance of Public Order”. It is pertinent to mention here that the Government may, if satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order or the security of the State, make an order directing that the person be detained. When the law providing for preventive detention permits detention of a person whose activities are prejudicial to defence, security of India or security of the State, it will be lawful to detain such person if any of his activities is considered by detaining authority affecting security of the State. Reliance is made to A. K. Roy v. Union of India, AIR 1982 SC 710. The security of the State can be put to danger by crimes of violence intended to overthrow the government. The expression “Security of the State” includes economic security also. Those who commit 3 HCP no.193/2024 economic offences do harm to the national interest and economy of the State and can be detained under preventive detention. Counterfeiting of currency and putting the same in circulation destabilize the economy of the State ad it affects the security of the State. Reference is made to Santokh Singh v. Delhi Administration, 1973 SC 1091; A.G. v. Amritlal(1994) 5 SCC 54; Safiya v. Government of Kerala, AIR 2003 SC 3562; Bashir Ahmad v. State 2004 (ii) SLJ 550. The question to ask is: “Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed”? This question has to be faced in every case on its facts. The “public order”, “law and order”, and “security of the State”, draw three concentric circles, the largest representing law and order, the next representing public order and the smallest representing security of the State. Every infraction of law must necessarily affect order, but an affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the State. The true test is not the kind, but the potentiality of the act in question. One act may affect only individuals while the other, though of a similar kind, may have such an impact that it would disturb the even tempo of the life of the community. This does not mean that there can be no overlapping in the same that an act cannot fall under two concepts at the same time. An act, for instance, affecting public order may have an impact that it would affect both public order and security of the State. 9. Perusal of relevant case law, thus, would show that “public order” specifies something more than “law and order”. The breach of public order involves a degree of disturbance and it affects upon the life of the community in a locality, which determines whether the disturbance amounts only to breach of law and order and not a public order. The difference between two concepts is in only one degree. An act affecting law and order may not necessarily also affect the public order and an act which might be prejudicial to public order may not affect the security of the State. Public order is synonymous with public safety and tranquillity and it is the absence of any disorder involving breaches of local significance in contradiction to national upheavals, such as revolution, civil strife, war, affecting the security of the State. 10. In Dr Ram Manohar Lohia v. State of Bihar and others, 1966 AIR SC 740, it has been held by the Supreme Court that any contravention of law always affects order but before it can be said to affect public order, it must affect the 4 HCP no.193/2024 community or the public at large. It was observed that offences against “law and order”, “public order” and “security of the State” are demarcated on the basis of the gravity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order though in the grounds of detention, the detaining authority had stated that by committing this offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community. It was held that mere citation of these words in the order of detention was more in the nature of a ritual rather than with any significance to the content of the matter. 11. The determining test in all such cases is “the act leads to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of society undisturbed”. The expression “law and order”, “public order” and “security of the State” are distinct concepts though always not separate. Every public order if disturbed, must lead to public disorder but every breach of the peace does not lead to public disorder. For example, when two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. 12. As has been held by the Supreme Court in G.M. Shah v. State of J&K, 1980 (AIR) SC 494, the expressions “law and order”, “public order” and “security of the State” are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State”. 13. The distinction between “Law and order” and “Public order” has been pointed out in Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228. According to that decision, the true distinction between the areas of “law and order” and “public order” is “one of degree and extent of the reach of the act in question upon society”. The Supreme Court pointed out that “the act by itself is not determinant of its own gravity. It its quality it may not differ but in its potentiality it may be very different”. 5 HCP no.193/2024 14. In the present case, detaining authority has made use of both expressions “prejudicial to maintenance of public order” as well as “prejudicial to security of the State”. Impugned detention order made on the basis of grounds of detention using the expression by the detaining authority to place detenu under preventive detention to prevent him from acting in any manner prejudicial to security of the State whereas defending the same detention order in the Reply Affidavit, the detaining authority states that it was necessary to prevent detenu from acting in any manner prejudicial to maintenance of public order, reflects and suggests non-application of mind on the part of detaining authority and, therefore, vitiates impugned detention order. 15. The question whether the prejudicial activities of a person requiring to pass a detention order is proximate to time when the order is made or the live- link between the prejudicial activities and the purpose of detention is snapped, depends on the facts and circumstances of each case. Nonetheless, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the casual connection has been broken in the circumstances of each case. Certainly, in the present case, there is no cogent explanation coming to fore from perusal of the grounds of detention with reference to the live-link between the prejudicial activities and the purpose of the detention and resultantly the impugned detention order is liable to be quashed. In this regard reference is made to the law laid down in T. A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 and Rajinder Arora v. Union of India and others (2006) 4 SCC 796]. 16. Preventive detention must be supported by existence of a ‘live and proximate link’ between past conduct and present imperative need to detain a person. It has been very often held that order of preventive detention must be passed by due application of mind and taking note of relevant factors. If order of detention is passed on the basis of incidents which are stale, it is often stated that incident not being of relevance to establish imperativeness in passing an order of detention and such order passed must be treated as being based on extraneous factors. The observations made by the Supreme Court in Sama Aruna v. State of Telangana and another, (2018) 12 SCC 150, is relevant to be reproduced herein below: 6 HCP no.193/2024 “22. We are of the view, that the detention order in this case is vitiated by taking into account incidents so far back in the past as would have no bearing on the immediate need to detain him without a trial. The satisfaction of the authority is not in respect of the thing in regard to which it is required to be satisfied. Incidents which are stale, cease to have relevance to the subject-matter of the enquiry and must be treated as extraneous to the scope and purpose of the statute.” 17. In such cases, the question would also arise regarding validity of an order of detention where after the last of such incidents there is a lull and after a substantial time lag, an order of detention is sought to be passed. The detaining authority must establish habituality of commission of offences which could be directly linked to a pattern of behaviour. In order to establish such pattern of behaviour that would reasonably indicate continuing commission of offences, the detaining authority must establish intermittent commission of offences which would indicate a regular pattern. 18. In plethora of judgments, the Supreme Court has held that the order of detention must not be based upon stale events and the relevant observations made by the Supreme Court in Ameena Begum v. State of Telangana and others, (2023) 9 SCC 587, are as under:- “17. In a different context, we may take note of the decision in Sama Aruna vs. State of Telangana11, where, S.A. Bobde, J. (as the Chief Justice then was) while construing the provisions of the Act, held: “16. There is little doubt that the conduct or activities of the detenu in the past must be taken into account for coming to the conclusion that he is going to engage in or make preparations for engaging in such activities, for many such persons follow a pattern of criminal activities. But the question is how far back? There is no doubt that only activities so far back can be considered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the conclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account.” In holding that the order of detention therein was grounded on stale grounds, the Court held that: “The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.” 19. This was further affirmed by the Supreme Court in Khaja Bilal Ahmed v. State of Telangana, (2020) 13 SCC 632, in which order of detention was issued on 2nd November 2018 and detaining authority had delved into the history of cases involving the appellant-detenu therein from the years 2007-2016, despite the subjective satisfaction of the Officer not being based on such cases. In quashing such an order, it was observed: 7 HCP no.193/2024 “23….. 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 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.” 20. I may also refer to the decision of a Constitution Bench of the Supreme Court in Sunil Fulchand Shah v. Union of India, (2000) 3 SCC 409, wherein the need to strictly adhere to the timelines, provided as procedural safeguards, was stressed upon. It was held thus: “11.….The safeguards available to a person against whom an order of detention has been passed are limited and, therefore, the courts have always held that all the procedural safeguards provided by the law should be strictly complied with. Any default in maintaining the time-limit has been regarded as having the effect of rendering the detention order or the continued detention, as the case may be, illegal. The justification for preventive detention being necessity a person can be detained only so long as it is found necessary to detain him. If his detention is found unnecessary, even during the maximum period permissible under the law then he has to be released from detention forthwith. It is really in this context that Section 10 and particularly the words ‘may be detained’ shall have to be interpreted.” 21. In the case in hand lack of demonstration of a live and proximate link between the year 2024 and 2018, has resulted in the order of detention being based on stale incidents. The assertion of habitual offender or absence of respect towards law of the land and other assertions as made in the ground of detention are not sufficient to maintain the thread of connection between the last incident and the order of detention in the absence of any material to substantiate propensity to commit crime realistically. Thus, the order stands vitiated. 22. The requirement of ‘proximity/live link’ is required to demonstrate imperativeness in invoking power of preventive detention more so where criminal prosecution is pending which proceedings may culminate in imposition of a punitive sentence. It is a settled position of law that the power of passing an order of preventive detention cannot be a punitive measure on the apprehension 8 HCP no.193/2024 however reasonable it maybe that detenu is going to go scot free in pending trials due to lack of support to prosecution by crucial witnesses or otherwise. 23. The power of preventive detention as the very word indicates has to be used bona fidely for the purpose of prevention of possible criminal offences by detenu based on past behaviour with a pattern of repeated offences. The observations of the Supreme Court in Khudiram Das v. State of West Bengal, AIR 1975 SC 550, would throw light on the above, the relevant observations are as follows:- “8.... The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof…..” 24. When the incidents, constituting the last incident, stops about six years back and as discussed above the thread of connectivity between the last incident and the order of preventive detention, is lost. The order of detention can be stated to be based on stale events in the absence of live link. Intertwined with the issue of proximity and live link are other factors that have vitiated the order of detention in the present case. 25. For the reasons discussed above, the detention Order no.07/DMB/ PSA of 2024 dated 29.03.2024, passed by District Magistrate, Bandipora, is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith, provided he is not required in any other case. 26. Disposed of. 27. Registry to return detention record to learned counsel for respondents. (Vinod Chatterji Koul) Judge Srinagar 15.07.2025 (Qazi Amjad, Secy) 9 HCP no.193/2024 QAZI AMJAD YOUSUF I attest to the accuracy and authenticity of this document 18.07.2025 16:52