Jammu & Kashmir High Court

Pronounced On:09.05.2025 vs Union Territory Of J&K And on 9 May, 2025

Author: Sindhu Sharma

Bench: Sindhu Sharma

                                                                            2025:JKLHC-JMU:1137


      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

HCP No. 145/2024
                                                  Pronounced on:09.05.2025

Mohd. Ramzan                                                   .... Petitioner(s)
                        Through:-     Mr. Sanchit Verma, Advocate

                  V/s

Union Territory of J&K and                                  .....Respondent(s)
others

                        Through:-     Mr. Bhanu Jasrotia, GA
CORAM:       HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

                                JUDGMENT

01. Challenge in this petition has been thrown to detention order No.

7th /DM/K/PSA of 2024 dated 07.11.2024, passed by the District Magistrate,

Kishtwar. The detenu-Mohd. Ramzan, was detained by the Detaining

Authority in order to prevent him from indulging into such activities which

are prejudicial to the security of the State. This detention order has been

challenged through his son-Nasir Ahmad.

02. The detention order has been assailed by the detenu on the

grounds that; (i) the Detaining Authority while passing the order of detention

has not applied his mind as there is no compelling reasons and cogent

material on the basis of which, Detaining Authority has made his subjective

satisfaction, as such there is total non-application of mind; (ii) the detenu has

two-folds and independent rights i.e., Right to be furnished all the

documents and subsequent right of representation against the order of

detention, but the rights of the detenu have been violated; (iii) the grounds of

detention have not been read over and explained to the detenu in the

language he understands; (iv) the grounds of detention are replica of the

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dossier with interplay of some words which exhibits that respondent No. 2

has not applied his mind while passing the order of detention; (v) there is no

live and proximate link between the past conduct of the detenu and there is a

need to detain the detenu; and (vi) the detention order has been passed only

on mere apprehension and the Detaining Authority has not arrived at any

subjective satisfaction before passing the order of detention;

03. The respondents have filed their counter affidavit and produced

the record of detention. In the counter affidavit filed by the respondents, it is

submitted that the conduct of detenu is detrimental to the sovereignty and

security of the Union Territory which required authorities to detain him to

prevent him from acting in a manner prejudicial to the maintenance of

security. The detenu was involved in FIR No. 268/2019 under Sections 7/25,

3/25/, 7/27 IA Act, 13/18/19/20/38/39 ULA(P) Act of Police Station

Kishtwar and FIR No. 01/2020 under Sections 3/25, 7/25 IA Act,

13/18/19/20/23/38/39 ULA(P) Act of Police Station Dachhan. It is further

submitted that none of the constitutional and statutory rights of the detenu

have been infringed or violated by the answering respondents. The detenu

was supplied with all the material relied upon by the Detaining Authority

while passing the order of detention and the same read over and explained to

him in the language he understands. The detention order was approved by

the Government on 13.11.2024 which was confirmed on 29.11.2024 on the

opinion of Advisory Board for a period of six months in the first instance

from the date of detention.

04. Heard learned counsel for the parties and perused the record also.

05. The detenu was detained vide order dated 07.11.2024 by the

District Magistrate, Kishtwar. The grounds of detention reveal that the

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detenu is involved in anti-national activities which are highly prejudicial to

the security and sovereignty of the State. The detenu is associated with the

underground network of banned organization (Hizbul Mujahideen) and

allegedly providing logistic support to them, therefore, to prevent him from

indulging in such activities, it has found imperative to detain the detenu

under the relevant provisions of the Public Safety Act.

06. The first contention of the detenu is that he has not been furnished

material forming basis of grounds of detention. Perusal of the detention

record reveals that the execution report, which is placed on record, the

Executing Officer-Anil Kumar PSI had executed the warrant, the detenu was

provided the detention order (3 leaves), grounds of detention (02 leaves),

dossier of detention (07 leaves) and other related relevant documents (54

leaves). The contents whereof were read over and explained to the detenu in

Urdu/Kashmiri language which he fully understood. This apart, he was also

informed of his right to make a representation to the Detaining Authority or

to the Government against the order of detention.

07. It is well settled that, in case, the detenu has been detained under

the preventive detention and the allegation as well as the material against the

detenu relied upon by the Detaining Authority was sufficient to derive its

subjective satisfaction that the detention of the detenu was imperative to

prevent him from acting in any manner which would cause threat to the

sovereignty and security of the Country. The receipt which is placed on

record reveals that the detenu has been provided the grounds of detention,

contents of the detention, dossier, copy of FIR and other material, the same

has been acknowledged by the detenu.

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08. Preventive detention has been held to be permissible under the

Constitution for detaining a person in accordance with the law made on the

subject. Preventive detention is made with the aim and object to keep the

society from activities of a person which are likely to deprive the large

number of people from their personal liberty. The object is to curtail and

prevent the liberty of an individual who involves in such activities is in the

larger public interest.

09. Personal liberty is one of the most precious rights guaranteed

under the Constitution and no one can be deprived of his right to life and

personal liberty except by procedure established by law. Article 22(5),

however, provides detention of person without formal charge, trial and

without person being held guilty of an offence. The only objective is to

prevent a person from creating mischief and to protect the society.

10. In "Haradhan Saha V. State of West Bengal", reported as

(1975) 3 SCC 198, Hon‟ble the Supreme Court has held that there is no

parallel between prosecution in a Court of law and a detention order under

the Public Safety Act. One is a punitive action and the other is a preventive

act. In one, case a person is punished to prove his guilt and the standard is

proof beyond reasonable doubt whereas in preventive detention a man is

prevented from doing something which it is necessary for reasons mentioned

in the Act. The relevant part of the judgment is reproduced as under:-

"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. The, basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under

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the Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent." 11. Similarly, in "Secretary to Government, Public (Law and order) and another vs. Nabila and another", (2015) 12 SCC 127, the Hon‟ble Apex Court has held as under:-

"Indisputably, the object of law of preventive detention is not punitive, but only preventive. In case of preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability and there is no criminal conviction which can only be warranted by legal evidence. However, the detaining authority must keep in mind while passing the order of detention, the civil and constitutional right granted to every citizen by Article 21 of the Constitution of India, inasmuch as no person shall be deprived of life and liberty except in accordance with the procedure established by law. The laws of Preventive Detention are to be strictly construed and the procedure provided must be meticulously followed".

11. Similarly, in "Union of India and another vs. Dimple Happy

Dhakad reported as AIR 2019 SC 3428", it has been held by Hon‟ble Apex

Court that the Court must be conscious that the satisfaction of the Detaining

Authority is „subjective‟ in nature and the Court cannot substitute its opinion

for the subjective satisfaction of Detaining Authority and interfere with the

order of detention, though the same is subject to review on the procedural

safeguards.

12. The grounds of detention are definite, proximate and free from any

ambiguity and the detenu was informed with sufficient clarity what weighed

with the detaining authority while passing the order of detention. The

procedural safeguards are complied with. The Detaining Authority arrived at

the satisfaction after considering all the material placed before it and none of