Jammu & Kashmir High Court
Reserved On: 18.09.2025 vs The Union Territory Of Jammu & Kashmir on 9 October, 2025
2025:JKLHC-JMU:3246
Sr. No.60
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.29/2025
Reserved on: 18.09.2025.
Pronounced on: 09.10.2025
Abdul Qayoom @ Bittu, Age 44 years
S/O Abdul Gani,
R/O Village Kadwah, Udhampur
District Udhampur, J&K
through his nephew Mohd Imran
....Petitioner(s)/Appellant(s)
Through :- Mr. Sanchit Verma, Advocate.
V/S
1. The Union Territory of Jammu & Kashmir
through Commissioner/ Secretary (Home),
Civil Secretariat, Jammu/Srinagar.
2. District Magistrate, Udhampur.
3. Senior Superintendent of Police, Udhampur.
4. Superintendent, Central Jail, Jammu.
....Respondent(s)
Through :- Mr. Sumeet Bhatia, GA
CORAM: HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner namely Abdul Qayoom @ Bittu, S/O Abdul Gani, R/O
Kadwah, Tehsil Basantgarh, District Udhampur (for short 'the detenue'), through
the medium of this Habeas Corpus Petition, has challenged the detention Order
No.14-PSA-2024 dated 24.12.2024 (impugned order), issued by respondent
No.2, District Magistrate, Udhampur (hereinafter to be referred as "the detaining
authority"), whereby detenue was ordered to be placed under preventive
detention, in order to prevent him, from acting in any manner prejudicial to the
'security of State'.
2. Petitioner has raised many grounds to assail the impugned order. It is his
contention that Detaining Authority though referred earlier cases from the years
1997 and 1998, as found in the Grounds of Detention, in which the petitioner
stood acquitted in all the cases; that vague entries in the shape of DDRs have
been recorded at Police Station Basantgarh; that he was not supplied whole of
the material on the basis of which the impugned detention order is passed; that
he was not informed of his right to file representation to the detaining authority;
that there was no live and proximate link of the cases with the impugned
detention order; that the detaining authority has exceeded its jurisdiction as there
was no compelling reasons and cogent material and details available before it on
the basis of which respondent no.2 has made his subjective satisfaction and
passed the impugned detention order; that whole material was not supplied to the
detenue, as such, he was prevented from making an effective and meaningful
representation to the respondents, in view of insufficient material provided to
him; that he was not informed about his right to make representation to the
detaining authority as well as government; that the representation made by the
detenue on 24.01.2025 to the competent authority was not considered and if
considered, its result was not communicated to him. Lastly, it is prayed that the
petition be allowed and the impugned detention order be set aside.
3. The respondents in their counter affidavit, repudiated the averments
made in the petition, submitting that the detenue is an Over Ground Worker
(OGW) and his actions have directly impacted local security operations; that the
detenue maintained contact with a banned organization and individuals who
have infiltrated Pakistan-Occupied Kashmir from the Basantgarh and Udhampur
regions, indicating strong anti-national tendencies; that the detenue has a
consistent history of involvement in anti-social activities, as reflected in 4 FIRs
registered against him between the year 1997 and 1998, that despite passage of
time, there was no reformation on his part, and his recent conduct reinforces
concern regarding his persistent engagement in activities prejudicial to public
order and national security; that a Daily Diary Report of 03.11.2024 from the
police station Basantgarh, as well as reports from Chowkidar, Numbardar and
the proceedings initiated under Section 126 of BNSS Act for maintenance of
public peace and tranquility in view of petitioner's antecedents and earlier
involvement made it imperative to detain him under preventive detention.
4. Respondents have further contended that the detention warrant along
with grounds of detention was properly executed through ASI Rupinder Singh of
P/S Basantgarh under proper acknowledgement of the detenue and he was fully
made to understand in the language he understands; that the detenue was also
informed that he can make representation to the Govt. as well as the detaining
authority against the detention order, if he so desires; that the representation filed
by the detenue was duly considered and disposed of and result thereof was
conveyed and a receipt in this regard has been placed on the record; lastly, it is
prayed that the petition be dismissed and the impugned detention order be upheld
as the same has strictly been passed as per the provisions of J&K Public Safety
Act. The respondents have produced the detention records in order to support the
contentions raised in the counter affidavit.
5. Heard learned counsel for the parties at length, perused the detention
record and considered.
6. Insofar as the plea raised by the detenue that the material relied upon by
the detaining authority has not been supplied to him is concerned, the
respondents disputed the same by asserting that the executing officer who
executed the detention warrants has filed an undertaking averring therein that the
detention warrant was properly executed upon the petitioner and the petitioner
was also briefed about the grounds of detention in the language he fully
understands. As per record, the detenue received copy of detention order, notice
of detention, Grounds of detention, dossiers of detention, copies of FIRs,
Statements of Witnesses and other related documents (total 39 leaves) from
executing officer ASI Rupinder Singh, of P/S Basantgarh in presence of Dy.
Superintendent Central Jail, Jammu, which were read over in English language
and explained to the detenue in Hindi/Dogri language he understands, and in lieu
of which his signatures were obtained on the execution report. Additionally,
there is an undertaking of the Executing Officer ASI Rupinder Singh, P/S
Basantgarh in the detention record, to the aforesaid extent.
7. Perusal of the record would show that there is a receipt of disposal of
representation in which the petitioner has put his signatures, and the said
document is duly attested by the Assistant Superintendent, Central Jail, Jammu.
This shows that the representation filed by the petitioner was duly considered
and result thereof was effectively communicated to the petitioner.
8. The grounds of detention clearly show that the detenue was involved in
cases with serious offences; that there is every apprehension that the detenue
would indulge in more such criminal activities and pose a grave threat to the
'security of State', therefore, he cannot be let off scot-free; that four FIRs and
one DDR containing offences of serious nature are registered/recorded against
the detenue; that the impugned detention order has been passed by the detaining
authority, on the basis of dossier submitted by the SSP concerned based on 04
FIRs and one DDR registered/recorded, against the detenue at Basantgarh Police
Station, showing the detenue's continuous involvement in criminal/anti-national
activities without any respect of substantive law, thus, disturbing the peace and
tranquility of the area and maintenance of law and order in District Udhampur.
Keeping in view the activities of the detenue, the Detaining Authority after due
application of mind, by arriving at subjective satisfaction, issued the impugned
order of detention, which cannot be found fault with.
9. It is settled proposition of law that this Court while exercising
jurisdiction under Article 226 of the Constitution has a limited scope to
scrutinize whether detention order has been passed on the material placed before
it, and it cannot go further and examine the sufficiency of material. This Court
does not sit in appeal over the decision of the Detaining Authority and cannot
substitute its opinion over that of detaining authority when the grounds of
detention are precise, pertinent, proximate and relevant [See State of Punjab v.
Sukhpal Singh, (1990) 1 SCC 35]. The power of preventive detention is a
precautionary power exercised in reasonable anticipation. It may or may not
relate to an offence. The order of preventive detention may be made before or
during prosecution and the pendency of the prosecution is not a bar to an order
of preventive detention which is also not a bar to prosecution. The power of
preventive detention is different from punitive detention. In a prosecution, the
accused is sought to be punished for his past acts, however, in preventive
detention the past act is merely a material for drawing inference about future
conduct of the detenue.
10. The aim of the preventive detention is not to punish a person for having
done something but to intercept and prevent him from doing so. Hon'ble the
Supreme Court in the case of Naresh Kumar Goyal v. Union of India & Ors
[(2005) 8 SCC 276] and Union of India & Anr v. Dimple Happy Dhakad
[AIR 2019 SC 3428] has held 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 anti-social and subversive elements from imperiling welfare of
the country or security of the nation from disturbing public tranquility or from
indulging in illegal activities or from engaging in illicit traffic in narcotic drugs
and psychotropic substances etc. 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."
11. The law of preventive detention has direct bearing on the subjective
satisfaction of the Detaining Authority. The subjective satisfaction of a
Detaining Authority, whether to detain a person or not, is not open to the
objective assessment by a Court. The Court while exercising power under Article
226 is not to act as an appellate forum to scrutinize the merits of the
administrative decision to detain a person. The Court cannot substitute its own
satisfaction for that of the authority concerned and decide whether its satisfaction
was reasonable or proper, or whether in the circumstances of the matter, the
person concerned should have been detained or not.
12. It is apt to mention that Indian Constitution undoubtedly guarantees
various freedoms and personal liberty to citizens in our Republic, however, such
freedoms guaranteed by the Constitutional mandate are not meant to be abused
and misused so as to endanger and threaten the very foundation of our society.
The larger interests of our nation as a whole and the cause of preserving for
every person the guaranteed freedoms demands reasonable restrictions on the
prejudicial activities of individuals who jeopardize the rightful freedoms of the
rest of the society. The main object of preventive detention is the security of the
State, maintenance of public order and of supplies and services essential to the
community. Detention order, which has been issued by the detaining authority
after arriving at subjective satisfaction, does not suffer from any legal infirmity
as the grounds of detention are definite, proximate and free from any ambiguity.
Furthermore, the detenue was duly informed of what weighed with the detaining
authority while passing the order of detention. The Detaining Authority has
recorded its subjective satisfaction after considering all the material available,
thus, none of the constitutional or statutory provision has been violated.
13. So far as the contention of the detenue that the representation filed by the
petitioner was neither considered nor result thereof conveyed to the petitioner, as
also he was not provided the copy of the detention order is concerned, the said
contentions have been effectively addressed by this court in the preceding
paragraphs and need not be reiterated here again. Thus, contention of the detenue
that he was incapacitated in view of non supply of whole documents for the
aforesaid reasons pales into insignificance.
14. So far as the contention of the detenue that he was not informed of his
right to file representation to the detaining authority was concerned, the same
contention becomes ineffective on a bare perusal of the execution report in
which the executing officer has informed the detenue that the petitioner can
make representation to the Government as well as Detaining Authority against
his detention order, if he so desires. Also a further perusal of the execution report
would show that the petitioner was duly explained the detention warrant and
grounds of detention in Hindi/Dogri language which he fully understood, in lieu
of which his signatures were also taken on the execution report.
15. The challenge to the detention order, in the considered opinion of the
court by taking into account the above facts as emerged from the record, fails on
all fours. The above conspectus of things would goad this court to the only
inescapable conclusion that the respondents have rightly detained the detenue
under the J&K Public Safety Act, in view of serious allegations, of which he was
charged.
16. The Detaining Authority has applied its mind by going through all the
documents, past conduct of the detenue against whom 04 FIRs/DDR stand
registered/recorded and accordingly, arrived at subjective satisfaction that the
activities of the detenue were prejudicial to the interest of the State and issued
the order of detention, which cannot be found fault with. Since the activities of
the detenue were directed against the object mentioned in the Act and the
Detaining Authority has arrived at subjective satisfaction that it was necessary to
prevent the detenue from acting in such manner and consequently, order of
detention came to be issued. Thus, it clearly shows that it is satisfaction of the
Government on the point, which alone is necessary to be established.
17. Liberty of an individual has to be curtailed, within reasonable bounds, for
the good of the society at large. The framers of the Constitution were conscious
of the practical need of preventive detention with a view to strike a just and
delicate balance between need and necessity to preserve individual liberty on one
hand, and security of the country as well as the interest of society on the other
hand. Security of State, maintenance of public order, prevention of drug
trafficking and other criminal activities demand effective safeguards in the larger
interest of the sustenance of a peaceful and democratic way of life. The personal
liberty may be curtailed, where a person faces a criminal charge or is convicted
of an offence and sentenced to imprisonment. Where a person is facing the trial
on a criminal charge and is temporarily deprived of his personal liberty because
of the criminal charge framed against him, he has an opportunity to defend
himself and to be acquitted of the charge in case the prosecution fails to bring
home his guilt. Where such an accused is convicted of offence, he still has
satisfaction of having been given the adequate opportunity to contest the charge
and also adduce the evidence in his defence.
18. The incorporation of Article 22 in the Constitution left room for
detention of person without a formal charge and trial and without such person
held guilty of an offence and sentenced to imprisonment by a competent Court.
Its aims and objects are to save the society from activities that are likely to
deprive a large number of people of their right to life and personal liberty. In
such a case, it would be dangerous for the people at large, to wait and watch, by
the time ordinary law is set into motion, the person having dangerous designs,
would execute his plans, exposing the general public to risk, causing colossal
damage to life and property. It is for that reason necessary to take preventive
measures and subsequently, prevent the person bent upon to perpetuate mischief
from translating his ideas into actions. Therefore, where individual liberty comes
into conflict with an interest of the security of the State or public order, then the
liberty of individual must give way to the larger interest of the nation, as has
been laid by the Hon'ble Supreme Court in 'Sunil Fulchand v. Union of India'
reported as (2003) 3 SCC 409.
19. Hon'ble the Supreme Court in the case of 'Mohd. Subrati alias Mohd.
Karim v. State of West Bengal' reported as (1973)3 SCC 250, has held as under:-
"7. No doubt, the right to personal liberty of an individual is zealously
protected by our Constitution but this liberty is not absolute and is
not to be understood to amount to licence to indulge in activities
which wrongfully and unjustly deprive the community or the society
of essential services and supplies. The right of the society as a
whole is, from its very nature, of much greater importance than that
of an individual. In case of conflict between the two rights, the
individual's right is subjected by our Constitution to reasonable
restrictions in the larger interest of the society."
20. Personal liberty is one of the most cherished freedoms, perhaps more
important than the other freedoms guaranteed under the Constitution. It was for
this reason that the framers of the Constitution included the safeguards in Article
22 in the Constitution so as to limit the power of the State to detain a person
without trial, which may otherwise pass the test of Article 21, by humanizing the
harsh authority over individual liberty. In a democracy governed by the rule of
law, the drastic power to detain a person without trial for security of the State
and/or maintenance of public order, must be strictly construed. However, where
individual liberty comes into conflict with an interest of the security of the State
or public order, then the liberty of the individual must give way to the larger
interest of the nation.
21. Viewed thus, there is no ground to interfere in the impugned order of
detention. The petition lacks merit and is dismissed, as such.
22. The detention record be returned to the respondents through their counsel.
Jammu: (MA CHOWDHARY)
09.10.2025 JUDGE
Raj Kumar
Whether the order is speaking? Yes
Whether the order is reportable? Yes
I pronounce this judgment today, in terms of Rule 138(3) of the J&K
High Court Rules, 1999.
Jammu: (VINOD CHATTERJI KOUL)
09.10.2025 JUDGE
