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2026 DAILYLAW 2144 (JK)

Abdul Gani v. UT of J&K

2026-03-25

Sanjay Dhar

body2026
JUDGMENT : SANJAY DHAR, J. 01. The petitioner, through the medium of the present petition, has challenged order No. PSA/173 dated 01.09.2025 (hereinafter to be referred to as “impugned order of detention” ) issued by respondent No. 2-District Magistrate, Kathua whereby he has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order and peace. 02. The petitioner has challenged the impugned order of detention on the ground that whole of the material, forming the basis of grounds of detention, has not been furnished to him, which has deprived him from making an effective representation against the impugned order of detention. It has also been contended that the grounds of detention are replica of the dossier of SSP, Kathua. It has also been contended the grounds of detention have not been explained to the petitioner in a language which he understands. It has also been contended that there has been non-application of mind on the part of the detaining authority inasmuch as in the grounds of detention there is no mention of the fact relating to acquittal of the petitioner in as many as three out of six FIRs, which find mention in the grounds of detention. It has further been contended that the activities in which the petitioner is alleged to have indulged do not warrant passing of an order of preventive detention. 03. The petition has been contested by the respondents by filing counter affidavit of the detaining authority viz respondent No. 2. In the counter affidavit, it has been submitted that whole of the material, on the basis of which grounds of detention have been formulated, has been provided to the petitioner and contents of the same have been explained to the detenue in Hindi/Dogri language, which he understands. It has been further submitted that all the statutory and legal requirements were followed by the respondents while executing the detention order against the petitioner. The respondents have also produced detention record to lend support to their contentions. 04. I have heard learned counsel for the parties and perused record of the case including the detention record, which has been produced by the respondents. 05. The respondents have also produced detention record to lend support to their contentions. 04. I have heard learned counsel for the parties and perused record of the case including the detention record, which has been produced by the respondents. 05. Although a number of grounds have been urged by the petitioner for assailing the impugned order of detention yet learned counsel for the petitioner has laid much emphasis on the following grounds: (i) That there has been non-application of mind on the part of the detaining authority inasmuch as in the grounds of detention there is no mention of the fact relating to acquittal of the petitioner in as many as three out of six FIRs, which find mention in the grounds of detention; (ii) That activities in which the petitioner is alleged to have indulged do not warrant passing of an order of preventive detention because the same pertain to ordinary criminal activities directed against the individuals and not against society as a whole. 06. In the context of the first ground urged by learned counsel for the petitioner, a perusal of the grounds of detention would reveal that it bears reference to as many as six FIRs bearing Nos. 132/2015 of Police Station, Kathua, 40/2020 of Police Station, Lakhanpur, 14/2022 of Police Station, Lakhanpur, 71/2022 of Police Station, Lakhanpur, 143/2025 of Police Station, Kathua and 328/2025 of Police Station, Kathua. The petitioner has placed on record copies of court orders, which reveal that he has been acquitted in cases arising out of FIR No. 40/2020 of Police Station, Lakhanpur, FIR No. 14/2022 of Police Station, Lakhanpur and FIR No. 71/2022 of Police Station, Lakhanpur. All these facts are missing in the grounds of detention and even in the police dossier, there is no mention of these facts. Thus, the sponsoring agency as well as the detaining authority has shown complete non-awareness about the acquittal of the petitioner in the aforesaid three FIRs. The acquittal of a detenue in a criminal case has a definite bearing upon the decision of the detaining authority at the time of drawing its subjective satisfaction. It is quite possible that if the factum of acquittal of the petitioner in as many as three cases was brought to the notice of the detaining authority, the said authority may not have passed the impugned order of detention against him. It is quite possible that if the factum of acquittal of the petitioner in as many as three cases was brought to the notice of the detaining authority, the said authority may not have passed the impugned order of detention against him. The sponsoring agency by showing complete non-awareness about this important aspect of the case has acted mechanically as a result whereof the impugned order passed by the detaining authority on the basis of incomplete material has been rendered illegal and invalid. 07. So far as the second ground urged by the petitioner is concerned, in this regard, if we have a look at the allegations made in the FIRs, which find mention in the grounds of detention, it is revealed that the petitioner has indulged in offences of minor nature like criminal trespass, causing hurt, causing wrongful restraint to individuals. None of these activities are directed against a particular segment of the society or against a group of persons but these activities are directed against individuals with whom it appears that the petitioner has a long standing enmity. Thus, the acts alleged to have been committed by the petitioner, which are covered by the FIRs forming basis of the grounds of detention, are not of such a gravity or magnitude that would cause disturbance to the tempo of the society so as to disturb the public order and tranquility. 08. This Court is conscious of the fact that it cannot undertake a judicial review of the subjective satisfaction of the detaining authority but it is a settled law that preventive detention cannot be resorted to in cases where the detenue is alleged to be involved in petty crimes, which do not disturb the public order. The Court would be well within its jurisdiction to invalidate an order of detention where subjective satisfaction drawn by the detaining authority is not based upon reason and logic and when the same is irrational in nature. 09. In the present case, as already stated, the petitioner as per the grounds of detention, is alleged to be involved in petty crimes directed against individuals and not against any group of people, as such, the subjective satisfaction drawn by the detaining authority for passing the impugned order of detention has become a causality. The impugned order is, therefore, not sustainable in law. 10. The impugned order is, therefore, not sustainable in law. 10. For what has been discussed hereinbefore, the petition is allowed and the impugned order of detention is quashed. The respondents are directed to release the petitioner from the preventive custody forthwith, provided he is not required in connection with any other case. 11. The record be returned to learned counsel for the respondents.