Jammu & Kashmir High Court - Srinagar Bench
Mohammad Amin Dar vs Ut Of Jammu And Kashmir Through ... on 28 August, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Serial No. 7
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 118/2024
Mohammad Amin Dar
S/o Abdul Aziz Dar
R/o Redwani Bala Kulgam
Through his wife namely
Zamrooda (aged 35 years)
..... Appellant/petitioner(s)
Through: -
Mr. Asif Nabi, Advocate
V/S
1. UT of Jammu and Kashmir through Principal Secretary to
Govt., Home Department, Civil Secretariat, Srinagar/Jammu
2. District Magistrate, Kulgam
3. Sr. Superintendent of Police, Kulgam
4. Superintendent Central Jail, Srinagar.
..... Respondent(s)
Through: -
Mr. Zahid Qais, GA
CORAM:
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
(ORDER)
28.08.2025
01. Petitioner, wife of Mohammad Amin Dar Son of Abdul Aziz Dar
Resident of Redwani Bala, Kulgam, for short detenue, is challenging the
detention order No. 06/DMK/PSA/2024 dated 27.03.2024, for short "impugned
order" issued by District Magistrate, Kulgam-respondent No. 2 herein, whereby
the detenue has been placed under preventive detention, on the grounds that the
Senior Superintendent of Police, Kulgam, vide his letter dated 13.02.2024,
drafted and produced the grounds of detention in respect of the detention order
before respondent No. 2 for passing of impugned detention order against the
detenue; the detaining authority has not applied his mind while passing the
detention order and has relied upon the grounds of detention made by SSP,
Kulgam; there is delay of eight years in passing the impugned detention order,
as the last activity against the detenue has allegedly taken place on 28.09.2016,
and no further activity is alleged against the detenue thereafter, while as the
detention order has been passed on 27.03.2024, therefore, there is no proximate
link between the alleged activity and passing of the impugned order; the
detaining authority has derived its satisfaction on the basis of grounds of
detention prepared and placed before him by Sr. Superintendent of Police,
Kulgam; the detenue has been shown to be admitted to bail only in FIR Nos.,
186/2013 and 136/2016, whereas, the detenue was already bailed out in all the
FIRs by the competent Court of law.
02. The detenue has also pleaded that he is only 8th pass and he was not
provided with the material in the language, which he could understand.
Moreover, the representations filed by the detenue, as per him, have not been
considered by the competent authority.
03. Per contra, it is stated by the respondents in their counter affidavit that
while examining the dossier and after perusing the material, the detaining
authority, after proper application of mind, was satisfied that the detenue's
activities are prejudicial to the security of the State, which necessitated the
respondents to pass preventive detention order against the detenue; the detenue
was detained in terms of order dated 27.03.2024, which was executed on
29.03.2024; the contents of warrant were read over to the detenue in the
language he fully understood; the detenue was also informed that he can make
a representation to the Government as well as to the detaining authority; the
Advisory Board constituted under Section 14 of the J&K Public Safety Act,
1978, examined the case of the detenue and after subjective satisfaction
confirmed the detention order passed by the detaining authority. It is further
stated that the contents of PSA warrant (01 leaf), notice (one leaf), grounds of
detention (06 leaves) were read over and explained to the detenue in
Urdu/Kashmir Language, which he understood fully.
04. Heard learned counsel for the parties, considered the submissions
made and perused the detention record.
05. The respondents, on their own showing, have furnished the detenue as
many as 08 leaves in all which did not consist of the important document
like dossier, copy of FIR and the allied statements.
06. Learned counsel for the detenue has relied upon the Judgment of this
Court delivered in petition bearing WP(Crl) No. 616/2022 titled Adil Nazir
Wagay Vs. UT of J&K and Anr. Paragraphs 8 to 11 being relevant are
extracted as under:-
8. The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B.K. Jha, 1987
(2) SCC 22 has held that it is only the procedural requirements, which are
the only safeguards available to the detenu, that is to be followed and
complied with as the Court is not expected to go behind the subjective
satisfaction of the detaining authority. In the present case, the procedural
requirements, as discussed above, have not been followed and complied by
the respondents in letter and spirit and resultantly, the impugned detention
needs to be quashed.
9. Another important aspect of the matter is that counsel for petitioner has
invited attention of this Court to impugned order of detention, particularly
first line thereof and thus, it would be advantageous to reproduce the same
hereunder:
"Whereas, on the basis of grounds of detention
placed before me by the Superintendent of Police
Kulgam......"
10. From the above, it is interestingly evident that detaining authority has said
in the impugned order of detention that it is "on the basis of grounds of
detention placed before" him "by the Superintendent of Police Kulgam"
that detaining authority is satisfied to place detenu under preventive
detention.
11. It is important to mention here that detaining authority may get inputs
from different agencies, including Superintendent of Police concerned, but
responsibility to formulate grounds of detention exclusively rests with
detaining authority. It is the detaining authority, who has to go through
reports and other inputs received by him from concerned police and other
agencies and on such perusal arrive at a subjective satisfaction that a
person is to be placed under preventive detention. It is, therefore, for
detaining authority to formulate grounds of detention and satisfy itself that
grounds of detention so formulated warrant passing of order of preventive
detention. However, in the instant case, it is evident from impugned order
of detention that grounds of detention have not been prepared by detaining
authority and resultantly impugned detention order is vitiated."
07. Learned counsel for the respondents has submitted that the
representation of the detenue was considered by the District Magistrate on
03.07.2024 and by Home Department on 22.07.2024, which were rejected,
however, it does not transpire as to whether the detenue has been informed
about such rejection of the said representations by the competent authority.
08. In this case, a strange practice has been adopted by District
Magistrate, Kulgam, who has based the detention order on a draft of grounds
of detention prepared and placed before him by the Senior Superintendent of
Police, Kulgam, which is quite unheard of. A duty is cast upon the District
Magistrate to examine the dossier being submitted to him by the SSP and
thereafter apply his mind while formulating the grounds of detention
himself. The grounds of detention clearly depicts that the District
Magistrate, Kulgam, has passed the detention order in a most casual manner,
which cannot stand the test of law. Moreover, a very vital aspect of the
matter has gone unnoticed of the respondents that the detenue was already
bailed out in all the FIRs.
09. The further lacunae of the impugned order is that the detenue has
been detained in the year 2024 for the activities alleged against him in case
FIRs of the year 2013 and 2016 i.e. after a long delay of 11 and 08 years
respectively.
10. The Supreme Court in case titled "Ameena Begum Vs. State of
Telenganna" reported as (1987) 4 SCC 58, has held the detention order must be
based on a reasonable prognosis of the further behaviour of a person based his
past conduct in light of the surrounding circumstances and requisite satisfaction.
It would be profitable to reproduce paragraphs 19,20, 28 and 29 of the said
judgment herein:
19. In holding that the order of detention therein was grounded on
stale grounds, the Court held that:
"17. 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."
20. This was further affirmed by this Court in Khaja Bilal Ahmed vs.
State of Telangana , where the detention order dated 2nd November, 2018
issued under the Act had delved into the history of cases involving the
appellant-detenu from the years 2007 - 2016, despite the subjective
satisfaction of the Officer not being based on such cases. In quashing such
an order, Hon'ble Dr. D.Y. Chandrachud, J. (as the Chief Justice then
was) observed:
"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 12 (2020) 13 SCC 632 978 [2023]
11 S.C.R. SUPREME COURT REPORT: DIGITAL 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."
28. In the circumstances of a given case, a Constitutional Court when
called upon to test the legality of orders of preventive detention would be
entitled to examine whether
(28.1) the order is based on the requisite satisfaction, albeit subjective, of
the detaining authority, for, the absence of such satisfaction as to the
existence of a matter of fact or law, upon which validity of the exercise of
the power is predicated, would be the sine qua non for the exercise of the
power not being satisfied;
28.2 in reaching such requisite satisfaction, the detaining authority has
applied its mind to all relevant circumstances and the same is not based
on material extraneous to the scope and purpose of the statute;
28.3 power has been exercised for achieving the purpose for which it has
been conferred, or exercised for an improper purpose, not authorised by
the statute, and is therefore ultra vires;
28.4 the detaining authority has acted independently or under the
dictation of another body;
28.5 the detaining authority, by reason of self-created rules of policy or in
any other manner not authorized by the governing statute, has disabled
itself from applying its mind to the facts of each individual case;
28.6 the satisfaction of the detaining authority rests on materials which
are of rationally probative value, and the detaining authority has given
due regard to the matters as per the statutory mandate;
28.7 the satisfaction has been arrived at bearing in mind existence of a
live and proximate link between the past conduct of a person and the
imperative need to detain him or is based on material which is stale;
28.8 the ground(s) for reaching the requisite satisfaction is/are such
which an individual, with some degree of rationality and prudence, would
consider as connected with the fact and relevant to the subject-matter of
the inquiry in respect whereof the satisfaction is to be reached;
28.9 the grounds on which the order of preventive detention rests are
not vague but are precise, pertinent and relevant which, with sufficient
clarity, inform the detenu the satisfaction for the detention, giving him the
opportunity to make a suitable representation; and
28.10 the timelines, as provided under the law, have been strictly
adhered to."
29. Preventive detention is, by nature, repugnant to democratic ideas and
an anathema to the Rule of law. No such law exists in the USA and in
England (except during war time). Since, however, Article 22(3) (b) of the
Constitution of India permits preventive detention, we cannot hold it
illegal but we must confine the power of preventive detention within very
narrow limits, otherwise we will be taking away the great right to liberty
guaranteed by Article 21 of the Constitution of India which was won after
long, arduous and historic struggles. It follows, therefore, that if the
ordinary law of the land (the Penal Code and other penal statutes) can
deal with a situation, recourse to a preventive detention law will be
illegal."
11. The Supreme Court in case titled "Jai Singh and Ors. Vs. State of
J&K" reported as AIR 1985 SC 764, has observed that if the detention order
is verbatim copy of dossier, it speaks about non-application of mind by the
detaining authority. Relevant portion of the Judgment is reproduced as
under:-
"First taking up the case of Jai Singh, the first of the petitioners
before us, a perusal of the grounds of detention shows that it is a
verbatim reproduction of the dossier submitted by the senior
Superintendent of Police, Udhampur to the District Magistrate
requesting that a detention order may kindly be issued. At the top
of the dossier, the name is mentioned as Sardar Jai Singh, father's
name is mentioned as Sardar Ram Singh and the address is given
as village Bharakh, Tehsil Reasi. Thereafter it is recited "The
subject is an important member of...." Thereafter follow various
allegations against Jai Singh, paragraph by paragraph. In the
grounds of detention, all that the District Magistrate has done is to
change the first three words "the subject is" into "you Jai Singh,
s/o Ram Singh, resident of village Bharakh, Tehsil Reasi".
Thereafter word for word the police dossier is repeated and the
word "he" wherever it occurs referring to Jai Singh in the dossier
is changed into 'you' in, the grounds of detention. We are afraid it
is difficult to find greater proof of non-application of mind. The
liberty of a subject is a serious matter and it is not to be trifled
with in this casual, indifferent and routine manner."
12. Viewed thus, the petition is allowed and detention order No.
06/DMK/PSA/2024 dated 27.03.2024, issued by District Magistrate, Kulgam-
respondent No. 2 herein, whereby detaining the detenue Mohammad Amin Dar
Son of Abdul Aziz Dar Resident of Redwani Bala, Kulgam, is quashed and the
respondents are directed to release the detenue forthwith.
13. The detention record is returned to the learned counsel for the
respondents against receipt.
14. Disposed of.
(MOKSHA KHAJURIA KAZMI)
JUDGE
SRINAGAR
28.08.2025
"Mohammad Yasin Dar"
