1. Preventive detention under J&K Public Safety Act, 1978 for security of State based on past criminal and anti-national activities. (Para 1 , 5 , 8 )
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2026 Supreme(Online)(J&K) 606
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
M. A. Chowdhary, J
Mohammad Ashraf Sheikh – Appellant
Versus
Union Territory of J&K – Respondent
HCP No.8/2025|CM 171/2025
Important Points
Preventive detention is a preventive measure, not a punitive one. Courts should not substitute their own view for the subjective satisfaction of the detaining authority if the grounds are rational and the procedure established by law is followed.
Subject
Criminal Law - Preventive Detention
Act Referred
Headnote
(A) J&K Public Safety Act, 1978 - Section 8 - Constitution of India - Article 22(5) - Preventive Detention - Subjective Satisfaction - Scope of Judicial Review - The subjective satisfaction of the detaining authority is primary; if the grounds are such that a rational human being can connect them to the objects to be prevented, the satisfaction cannot be challenged except on grounds of mala fides. The court cannot act as a court of appeal to substitute its view for that of the detaining authority. (Para 10, 11)
(B) Nature of Preventive Detention - It is a preventive action meant to protect society and intercept a person before they commit a prejudicial act; it is not curative, reformative, or punitive in nature. (Paras 13, 14)
Facts of the case:
The petitioner challenged his detention order passed under Section 8 of the J&K Public Safety Act, 1978, alleging that the grounds were vague, based on stale information, and that he was not provided with the necessary material to make an effective representation. The state countered that the petitioner had a history of involvement in anti-national activities (FIRs under the IA Act, UA(P) Act, and IPC) and was acting as an Over Ground Worker (OGW) for a proscribed outfit.
Findings of Court:
The court found that the petitioner had been supplied with the detention warrant, grounds, dossier, and relevant FIRs. The grounds of detention were found to be definite and unambiguous, and the legal requirements for preventive detention were satisfied.
Issues: Whether the detention order was based on vague grounds and whether the petitioner's right to make a meaningful representation was violated.
Ratio Decidendi: Following the precedent in 'The State of Bombay v. Atma Ram Shridhar Vaidya', the court ruled that it cannot substitute its own objective test for the subjective satisfaction of the government, provided the satisfaction is based on grounds that a rational person would find connected to the security of the state.
Result: Petition dismissed.
(B) Nature of Preventive Detention - It is a preventive action meant to protect society and intercept a person before they commit a prejudicial act; it is not curative, reformative, or punitive in nature. (Paras 13, 14)
Facts of the case:
The petitioner challenged his detention order passed under Section 8 of the J&K Public Safety Act, 1978, alleging that the grounds were vague, based on stale information, and that he was not provided with the necessary material to make an effective representation. The state countered that the petitioner had a history of involvement in anti-national activities (FIRs under the IA Act, UA(P) Act, and IPC) and was acting as an Over Ground Worker (OGW) for a proscribed outfit.
Findings of Court:
The court found that the petitioner had been supplied with the detention warrant, grounds, dossier, and relevant FIRs. The grounds of detention were found to be definite and unambiguous, and the legal requirements for preventive detention were satisfied.
Issues: Whether the detention order was based on vague grounds and whether the petitioner's right to make a meaningful representation was violated.
Ratio Decidendi: Following the precedent in 'The State of Bombay v. Atma Ram Shridhar Vaidya', the court ruled that it cannot substitute its own objective test for the subjective satisfaction of the government, provided the satisfaction is based on grounds that a rational person would find connected to the security of the state.
Result: Petition dismissed.
Legal Category Hierarchy
- constitutional law
- crime and sentencing
Advocates:
For the Appellants/Petitioners: Adil Pandit, Nida Nazir
For the Respondents: Bikramdeep Singh
For the Appellants/Petitioners: Adil Pandit, Nida Nazir
For the Respondents: Bikramdeep Singh
Table of Contents
2. Petitioner: detention on false grounds, vague grounds, non-supply of documents, stale grounds, no opportunity for representation. Respondent: sufficient material, normal law inadequate. (Para 2 , 3 )
3. Grounds of detention are definite and unambiguous. Detenue was supplied all documents and informed of right to representation. No illegality in detention order. (Para 9 , 15 )
4. Subjective satisfaction of detaining authority on necessity of preventive detention is not reviewable by court on sufficiency of grounds; only mala fides is justiciable. (Para 11 , 12 , 13 )
5. Petition dismissed. Impugned detention order upheld. (Para 16 , 17 )
6. What is the scope of judicial review of a preventive detention order?
Judicial review is limited to examining whether the subjective satisfaction of the detaining authority is based on grounds a rational person could consider connected to the statutory objects; mala fides is justiciable. (Para 10 , 11 , 12 )
7. Is failure to supply documents to the detenue a valid ground to challenge detention?
If the detenue is supplied with the detention warrant, grounds of detention, dossier, copies of FIRs, and other documents against a proper receipt, without incapacitating him from making a representation, the challenge fails. (Para 9 )
8. What is the purpose of preventive detention?
Preventive detention aims to prevent a person from committing a prejudicial act, not to punish for a past act. Its justification is suspicion or reasonable probability, not criminal conviction. (Para 6 , 7 , 13 , 14 )
JUDGMENT
1. Impugned in this petition is the Detention Order No. DMB/PSA/11 of 2024 dated 23.11.2024 (for short ‘impugned order’) passed by respondent no. 2-District Magistrate, Budgam in terms whereof petitioner came to be detained under Section- 8 of The J&K Public Safety Act, 1978 in order to prevent him from acting in a manner prejudicial to the ‘security of State’.
2. Through the medium of the present petition, petitioner assails his detention order, on the grounds that the detenue has been detained under the Public Safety Act on false and flimsy grounds without any justification; that the grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective and meaningful representation against these allegations. Further plea of the detenue is that he has not been provided the material/documents relied upon by the detaining authority, so as to make an effective representation before the detaining authority; that he was not informed that he can make a representation before the District Magistrate, therefore, a valuable right of the detenue stands defeated; that the Detaining authority, while passing the impugned order, has relied upon the stale grounds, therefore, the same is not sustainable. It was prayed to quash the impugned order for the afore-stated grounds.
3. Counter affidavit has been filed by respondent No. 2-District Magistrate Budgam resisting the present petition. It is contended that detaining a person under the provisions of Public Safety Act is always preventive in nature and its sole aim is to prevent a person from pursuing anti-national/anti-social activities, which are prejudicial to the maintenance of public order/security of the State. In the instant case there is enough material against the detenue which is highly suggestive of the fact that the normal law of the land is not sufficient to prevent him from continuing with his anti-national activities and it is evident that the detenue is highly motivated and is not likely to desist from anti-national and unlawful activities.
4. Heard learned counsel for the parties, perused the detention record produced by learned counsel for the respondents and considered.
5. Perusal of the detention record would indicate that the detenue was earlier apprehended in a case registered vide FIR No. 35/2022 under sections 7/25 IA Act , and 13, 23, 39 UA(P) Act at P/S Beerwah and was released on bail on 19.11.2022 by the competent court of law. Again the detenue was apprehended in a case registered vide FIR No.55/2024 under sections 447, 323, 354 IPC at P/S Magam. Thereafter, the detenue was kept under preventive measures several times under section 107/151 Cr.PC (now 126/170 BNSS ) on 06.05.2023, 29.08.2023, 03.04.2024, 03.07.2024 and 01.08.2024, for his involvement in anti-national activities. The aforestated reasons persuaded the Detaining authority to curb his activities to order detention of the detenue under the provisions of The J&K Public Safety Act.
6. Undoubtedly Right of personal liberty is a most precious right guaranteed under the Constitution of India. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in the case ‘ Maneka Gandhi vs. Union of India , (1978 AIR SC 597)’, is to be just and fair. 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 trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defense.
