1 S. No. 21 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(Crl) No.235/2023 CrlM No.692/2023 NAWAZ AHMAD SHAN …Petitioner(s) Through: Mr. Aushaq Hussain Shah, Advocate. Vs. UNION TERRITORY OF J AND K AND ORS ...Respondent(s) Through: Mr. Zahid Qais Noor, GA. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 18.09.2025 (ORAL) 1. The petitioner herein in the instant petition filed under Article 226 of the Constitution has challenged detention order No. 22/DMK/PSA/2021 dated 01.12.2021 (for short the impugned order) passed by respondent 2, (for short the detaining authority) under and in terms of the provisions of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act of 1978) at the pre-execution stage. 2. It is being stated by the petitioner in the instant petition that in the month of March 2018, he, the petitioner came to be arrested and detained illegally by Police Station Qazigund and was subsequently implicated as an accused in FIR No.51/2018 registered with Police Station Qazigund for offences under Sections 147, 148, 336 and 427 RPC in which FIR the petitioner was admitted to bail by the competent court of law and subsequently released and a charge sheet also came to be filed arising out of said FIR 51/2018 supra before the court of Chief Judicial Magistrate, Anantnag on 10.09.2023 in presence of the petitioner. 3. It is being next stated that few days back the petitioner came to know about the passing of the impugned order whereafter the petitioner approached the office of respondent 2 with an application for furnishing him a copy of the order of detention and upon being furnished a copy of the said impugned order, prior to the filing of instant petition, he, the petitioner challenged the said order in WP(Crl) No.157/2023, which petition came to 2 be, however, withdrawn by the petitioner herein on 29.05.2023 with the permission of the court on the ground that representation submitted by the petitioner against his detention before the respondents has not been decided yet. 4. It is being further stated that after waiting for sometime qua the consideration and disposal of the said representation which, however, was not considered and decided by the respondents, the petitioner maintained the instant petition for the quashing of the impugned order at pre execution stage. 5. The petitioner herein has maintained the instant petition, on the grounds which are extracted and reproduced hereunder: - 07 That the petitioner challenges the detention order passed by the respondent No.2 on the following grounds, the grounds being taken alternatively without prejudice to one another. 08) That the allegations/grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective representation against these allegations and can only be defended in a court of law and passing of an order of preventive detention on such grounds is arbitrary and act of despotism and outside the shadow of the constitution, the order of detention is unreasoned and unjustified and deserves to be quashed before it is executed so as to safe guard the constitutional rights of a petitioner. 09) That the respondent no 2 has passed the detention order and the same has to be approved within twelve days time, it is the binding duty of the detaining authority to approve the order of detention within a period of 12 days from the date of passing of order of detention and beyond the period of twelve days the order cannot be executed. Since more than twelve days have already elapsed from the date it has been passed as such the validity of the order has expired and the same cannot be executed now. On this ground the order of detention is no more enforceable and respondents deserve to be directed that the order be not executed. 10) That the detention order has been passed against the wrong person as the detenue is not involved in any allegations as mentioned in the grounds of detention. On this ground also the detention order is bad in law as being suffering from non-application of mind and deserves to be quashed.. 11) That as per the grounds of detention the detaining authority has relied upon the implication of the detenue in cases FIR No 51/2018 mentioned in grounds of detention, so as to reach the satisfaction to pass the impugned detention order, however the petitioner was already arrested in the cases mentioned the grounds of detention and was already admitted to bail by the court of competent jurisdiction & chalaan in the said FIR was already presented before the Court however, the detaining authority has not mentioned this important fact in the grounds of detention that the chalaan in the said case has been presented before the Honble Court. On this ground detention order suffers from non-application of mind on part of detaining authority and deserves to be quashed. 12) That petitioner was always available to the respondents who never executed the impugned detention order, as such the order is bad & deserved to be quashed. 3 13) That the allegations as reflected in the grounds of detention are vague and don't justify the passing of detention order on the basis of such allegations. The detaining authority has not given any reasonable justification to pass the detention order and neither the detaining authority has given the specific details, month date of occurrence, role played by the petitioner, how he is connected with offences and the allegations, which it has leveled, in the grounds of detention. As such the impugned order of detention suffers from complete non-application of mind on the part of detaining authority and the same deserves to be quashed. 14) That the petitioner is the lone breadwinner and caretaker of his family & suffering from serious ailment & is under treatment of different doctors. If the impugned order of detention is allowed to be executed and the petitioner is committed to custody, same will result in deteorating health and in these crisis situation the family will loose the sole care taker. The order is unjustified and the interest of justice demand that the impugned order be not allowed to be executed so that the petitioner is saved from illegal and unjustified detention and the family is saved from getting exposed to any sort of crisis which may result thereof. 15) That the last alleged activity as mentioned in the grounds of detention has occurred on 12-03-2018, and the petitioner was arrested in the same month for these allegation and has been thereafter released on bail in due course of law. Since after the last alleged activity no fresh allegation has been attributed to the petitioner, as such there is no justification to pass the preventive detention order after an elapse of more than ten months from the date last alleged activity has taken place. The long delay between the alleged activity and the order of detention, makes the preventive detention alien with the very basic object of the preventive detention, particularly in the given fact that in between this period of delay the petitioner was taken into custody in furtherance of the investigation of the cases and thereafter released on bail. The delay between the last alleged activity and the order of detention makes the order unreasonable and unconstitutional and such order deserves to be quashed unexecuted. 16) That the order of detention has been passed on 01-12-2021 and till date no effort has been made by the respondents to execute the same and the respondents have chosen not to execute the detention order till date despite him being available for execution. The delay of more than one month and continuing, in execution has rendered the detention order purposeless and as such detaining the petitioner to the preventive custody will be unjustified and unconstitutional. It is well settled principle of law that when there is unsatisfactory delay in execution of detention order such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority or the sponsoring authority as regards the necessity of the preventive detention of the person concerned. On this ground also the impugned order deserves to be quashed unexecuted. 17) That the detaining authority has not made any effort till date to secure the arrest of the petitioner for the execution of the impugned detention order. It will be apt to mention here that the detenue has been attending the court hearings before the trial court in the case registered against him. The preventive detention is a serious invasion upon the personal liberty of a person and can be permitted only in extraordinary situation in the larger public interest. The preventive detention is the necessity of the time and not a liability upon a person. The order of preventive detention has to be allowed based upon purpose and not upon the wish of the administration. On this ground the impugned detention order is bad in law and deserves to be quashed. 18) That the allegations leveled in the grounds of detention relate to the month of March 2018 and the allegations have no proximity with present time for the purpose of preventive detention unless any fresh activity is not attributed to the petitioner. Furthermore, the alleged requirement of the preventive detention as mentioned in grounds of detention has already expired and if the order is allowed 4 to execute now same will be arbitrary and miscarriage of justice and will be against the spirit of the Article 21 of the Constitution. On this ground the order of detention deserves to be quashed at pre-execution stage and the respondents deserve to be restrained from executing the impugned detention order. 19) That the grounds are vague, unfounded, and irrelevant and non-existent as the respondent no.2 has passed the detention order without following procedure of law as envisaged under U/S 8 of Public Safety Act. The detaining authority has not clearly and vividly mentioned in the grounds of detention that what were the activities and when the petitioner has involved himself in the subversive activities, so called to be prejudicial to security of state. On this ground the order of detention and grounds of detention is bad in law and deserves to be quashed. 20) That the impugned detention order is illegal and bad in law as the grounds of detention which forms basis for passing the detention order has been formulated by the Sr. Superintendent of police and there has been no independent application of mind on part of detain authority nor any material has been perused by it and as such the requisite satisfaction for passing detention order is lacking in the present case and on this ground also the detention order is illegal and deserves to be quashed. 21) That the procedural safeguards prescribed under the provisions of Public Safety Act and the rights given under Article 22(5) of Constitution of India have not been followed. On this ground the order of detention and grounds of detention are bad in law and deserves to be quashed. 22) That the allegations contained in the grounds of Detention are false and frivolous, without any cogent material and reasoning. The allegation in the grounds of detention that the petitioner has been involved in unlawful activities, which has not been conspicuously and vividly unveiled. The respondent no.2 while issuing the order of detention has not profoundly divulged anywhere in the grounds of detention, whom and how has he resorted to unlawful activities. The petitioner has been ordered to be detained on flimsy grounds rendering the order of detention bad in law and deserves to be quashed. 23) That the respondent no.2 has not spelled out any compelling reasons in the grounds of detention that warrants the passing of order of detention against the petitioner. Further the petitioner has all along been peaceful and law abiding citizen and has not participated in any activity which would cause prejudice to maintenance of public order or security of State. On this ground the order of detention and grounds of detention are bad in law and deserves to be quashed. 24) That the respondent no.2 has passed the detention order on vague, irrelevant and extraneous grounds and on this ground the order of detention is bad in law and deserves to be quashed. 25) That for the reasons stated above, the life and liberty of the above named detenue has been deprived without any accord of law and hence the detention deserves to be quashed and he deserve to be compensated for illegal detention by the state authorities. However the petitioner seeks leave of the honorable court to agitate supplementary grounds against the order of detention at the time of hearing, as would be known or available to the petitioner during the pendency of writ petition. 26) That the petitioner has no other alternate, efficacious remedy available but to approach to this Honorable Court for the redress of his grievances. 27) That the petitioner has not moved any other writ petition in the same name before this Honorable court or any other court including Supreme Court of India. 5 6. Reply affidavit has been filed to the petition by the respondents wherein the petition is being opposed, inter alia, on the premise that upon perusal of the record/material submitted by Superintendent of Police, Kulgam, and after carefully examining the same inasmuch as after deriving subjective satisfaction, the preventive detention in terms of the order under challenge against the petitioner was ordered, while stating further that the petitioner was found involved in the FIR No.51/20218 registered with Police Station Qazigund and that the activities of the petitioner were found predudicial to the Security, Sovereignty and Integrity of the State and that though the warrant of execution issued for execution of the said order against the petitioner was handed over to Superintendent of Police Kulgam, however, the same was not executed due to certain reasons. 7. It is being further stated that the grounds of detention framed by the detaining authority connected the petitioner with the activities which on the face of it are highly prejudicial to the Security and Integrity of the State. 8. It is also being stated in the reply affidavit that notwithstanding the non-execution of the order of detention, the detention order along with grounds of detention were read over and explained to the detenue in the language he understood and was also furnished the copies of detention order, grounds of detention as well as the communication dated 01.12.2021 and was also informed about his right of making a representation against his detention. Heard counsel for the parties as perused the record. 9. The law in regard to challenge an order of detention at pre execution stage and exercise of the power of judicial review qua the same is no more res-integra and stands settled by the Apex Court in the case titled as “Additional Secretary to the Government of India and Ors. Vs. Smt. Alka Subhash Gadia and Anr.” reported in 1992 Supp (1) SCC 496 wherein at paras 30 to 32 following has been held: - 30. As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution, we find that this argument is also not well b merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and 6 its exercise. Neither the Constitution including the provisions of Article 22 thereof nor the Act in question places any restriction on the powers of the High Court and this Court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammeled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not con-fined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self- imposed internal restrictions that the courts insist that the aggrieved person first allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High Court and this Court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders are in operation only for a limited period. Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have b been passed, (i) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents vents their abuse and the perversion of the law in question. 31. Lastly, it is always open for the detenu or anyone on his behalf to challenge the detention order by way of habeas corpus petition on any of 7 the grounds available to him. It is not, therefore, correct to say that no judicial review of the detention order is available. In the view we are taking which applies also to the cases under other laws, the stage at which the judicial review is made by the Court only stands deferred till after the order is executed. A ground on which a detention order is challenged which requires investigation and cannot be adjudicated without hearing the other side and without proper material, has necessarily to await decision till the final hearing. In such cases the operation of the order of detention by its very nature cannot be stayed pending the final outcome. The only proper course in such cases is to hear the petition as expeditiously as possible. 32. This still leaves open the question as to whether the detenu is entitled to the order of detention prior to its execution at least to verify whether it can be challenged at its pre-execution stage on the limited grounds available. In view of the discussion aforesaid, the answer to this question has to be firmly in the negative for various reasons. In the first instance, as stated earlier, the Constitution and the valid law made there-under do not make any provision for the same. On the other hand, they permit the arrest and detention of a person without furnishing to the detenu the order and the grounds thereof in advance. Secondly, when the order and the grounds are served and the detenu is in a position to make out prima facie the limited grounds on which they can be success-fully challenged, the courts, as pointed out earlier, have power even to grant bail to the detenu pending the final hearing of his petition. Alternatively, as stated earlier, the Court can and does hear such petition expeditiously to give the necessary relief to the detenu. Thirdly, in the rare cases where the detenu, before being served with them, learns of the a detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre- execution stage, of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at b that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the courts have exercised their powers at the pre-execution stage, though such cases have been rare. This only emphasizes the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do so nor will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well settled principles. 10. Although in the judgement Additional Secretary to the Government of India supra it has been held that the detention order can be challenged at pre execution stage only on limited grounds that too when courts are prima facie satisfied; “firstly”, that the impugned order is not based under the Act under which it is purported to have been passed, “secondly”, that it is sought 8 to be executed against a wrong person, “thirdly”, it is passed on a wrong purpose, “fourthly”, that it is passed on vague, extraneous and irrelevant grounds and “fifthly”, that the authority which passed it had no authority to do so and though case of the petitioner herein does not fall under any of the said grounds yet. Since it has been further held in the judgement supra by the Apex Court that the refusal by the courts to use extraordinary powers of judicial review to interfere with the detention orders prior to the execution on any other ground does not amount to abandonment of the said power or to the denial to the proposed detenue, but is to prevent the abuse and the perversion of the law in question, thus, this Court proceeds to examine the said power of judicial review qua the impugned order at pre-execution stage having regard to the peculiar facts of the case in hand. 11. 11. Perusal of the record available on the file reveals that it has not been denied by the respondents herein that the petitioner while being involved in FIR No.51/2018 was present at the time of presentation of the charge sheet arising out of the said FIR before the court of Chief Judicial Magistrate, Kulgam, thus suggesting that the petitioner was readily available to the respondents for execution of the impugned order of detention least on the date the said charge sheet was presented before the said court. 12. It is also not forthcoming from the reply affidavit or else the detention record produced by the counsel for the respondents that the execution of the detention order was avoided or delayed by the petitioner or that the petitioner was absconding. 13. It is also significant to mention here that the petitioner prior to the filing of the instant petition and as has been noticed in the preceding paras had filed the WP(Crl) No.157/2023 before this Court and had withdrawn the same on 29.05.2023 after seeking permission of this Court which permission manifestly reveals that the counsel for the respondents have had been present on the said date before the court and had the knowledge and information about the filing of the said petition being pursuing by the petitioner for seeking quashing of the impugned order at pre-execution stage. 14. Record also reveals that interestingly the respondents in the reply affidavit though have not spelt out any reason as to why the impugned order could not be executed, yet have stated in the reply affidavit that the detention order could not be executed due to certain reasons which reasons seem to be 9 mystery best known to the respondents. The respondents ironically have stated in the reply affidavit about the handing over and explaining the detenue the order of detention as well the grounds of detention, besides having communicated him about his right of making a representation. Here a reference to the judgment of the Apex Court passed in case titled as “Naresh Kumar Goyal Vs. Union of India and Ors”. reported in 2005 (8) SCC 276 would be relevant wherein at para 8 following has been held: - 8. It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the antisocial and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities 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. It, therefore, becomes imperative on the part of the detaining authority as well as the executing authority to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. Inordinate delay, for which no adequate explanation is furnished, led to the assumption that the live and proximate link between the grounds of detention and the purpose of detention is snapped. 15. It is significant to mention here that the preliminary objection raised by counsel for the respondents qua the maintainability of the instant petition that the petitioner had earlier filed WP(Crl) No.157/2023 challenging the impugned order of detention therein the said petition and withdrawn the same on 29.05.2023 without seeking liberty to file a fresh petition and could not have maintained the instant petition in absence of any such liberty from this Court, however, pales into insignificance in view of the fact that though admittedly the petitioner did not seek liberty while withdrawing earlier petition yet record reveals that the present petition has been filed on an additional ground/cause that the representation which had been submitted by him before the respondents against the order of detention was not considered and decided by the respondents. 10 16. Having regard to the aforesaid position of law and what has been observed and considered and analyzed hereinabove, the only inescapable conclusion that could be drawn is that the respondents even though ordered preventive detention of the petitioner in terms of the impugned order dated 01.09.2023, yet have failed to execute the same for unknown reasons and despite the availability of the petitioner. The respondents seemingly have neither been vigilant nor interested in executing the impugned order against the petitioner till such time the petitioner maintained the instant petition and obtained a stay qua the execution of the said order on 07.08.2023. 17. Under these circumstances, it is apparent that the impugned order has turned into a dead letter and live and proximate link between the grounds of detention based upon the impugned order has been passed stands snapped. 18. Viewed thus impugned order No. 22/DMK/PSA/2021 dated 01.12.2021 is liable to be quashed and is accordingly quashed. 19. The detention record provided by the counsel for the respondents is returned back in the open court (JAVED IQBAL WANI) JUDGE SRINAGAR 18.09.2025 Ishaq Whether the order is speaking? Yes Whether approved for reporting ? Yes