Safiya Malik

The High Court of Jammu and Kashmir and Ladakh at Srinagar, Single Bench of Justice Moksha Khajuria Kazmi set aside a preventive detention order issued by the District Magistrate, Pulwama against a person booked under the Arms Act and the Unlawful Activities (Prevention) Act. The Court observed that reliance on an incident that occurred five years earlier could not justify preventive custody, since such a delay breaks the necessary connection between the alleged acts and the need for detention. Holding that the action was founded on outdated and insufficient grounds, particularly when the accused had already secured bail in the underlying case, the Bench directed that he be released forthwith unless wanted in any other matter.

The petition concerned the preventive detention of a 27-year-old resident of Drabgam, Pulwama, ordered by the District Magistrate, Pulwama, under the Jammu and Kashmir Public Safety Act, 1978. The detention was based on allegations of his involvement in a 2020 case registered at Police Station Rajpora under Sections 7/25 of the Arms Act and Sections 18, 23, and 39 of the Unlawful Activities (Prevention) Act.

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The petitioner challenged the detention on the grounds of non-application of mind and violation of procedural safeguards. It was contended that the detenue had already been granted bail in the 2020 case by a competent court in November 2023 and that the detention order was issued without supplying the complete record or material relied upon, thereby preventing him from making an effective representation. The petitioner also argued that the dossier was submitted by the Senior Superintendent of Police on April 28, 2025, and the detention order was issued only two days later, showing a lack of independent assessment by the detaining authority.

In response, the respondents defended the detention, asserting that the detenue had re-established contacts with active militants and that his activities posed a threat to the security of the Union Territory. The respondents maintained that the preventive detention was necessary to prevent further unlawful acts. The Court examined the detention record, pleadings, and relevant legal principles governing preventive detention, particularly the sufficiency of substantive law and the temporal link between the alleged acts and the detention.

The Court recorded that the petitioner’s arguments regarding the insufficiency of substantive law “appear to be carrying weight and does not appear to have been effectively rebutted by the respondents.” It further noted that “the detenue had been found involved in case FIR No. 119/2020… wherein he had been granted bail… and the impugned order having been based on such FIR is an outcome of stale allegations.”

The Court stated that the respondents failed to justify “as to how the substantive law, pressed into service against the detenue by virtue of FIR No. 119/2020… was not sufficient to prevent the detenue from indulging in the activities alleged against his person.” In support of this reasoning, the Court reproduced paragraphs 30 to 34 of Rekha v. State of Tamil Nadu, noting that the Supreme Court had articulated that “whenever an order under a preventive detention law is challenged one of the questions the court must ask… is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.”

The judgment further stated: “This does not mean that the Constitution Bench laid down that in all cases the authorities can take recourse to both criminal proceedings as well as a preventive detention order even though… the former is sufficient to deal with the situation.” It was stated through the excerpt that preventive detention is permissible “only then… when the ordinary criminal law… will not be able to deal with the situation.”

The Court also examined the issue of stale grounds, observing that the impugned order was “based on the stale grounds as the impugned order of detention has been passed five years later the date of the registration of the FIR.” It recorded that “there is no proximate link to the alleged actions of the detenue that were deemed to be prejudicial to the maintenance of security of the State.”

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The Court relied on Malada Sriram v. State of Telangana, including: “there is no proximate or live connection between the acts complained of and the date of the detention order” and “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 Court stated that it was “satisfied that the petitioner has succeeded in proving his case” and that the detention order was “not in consonance with the statute and the law on the subject.”

The Court held that “the petition is allowed and detention order No. 07/DMP/PSA/25 dated 30.04.2025… is quashed and the respondents are directed to release the detenue forthwith, if not required in any other case. Record produced by learned counsel for the respondents be returned to him against receipt.”

Advocates Representing The Parties

For the Petitioners:
Mr. Zameer Abdullah, Advocate; Mr. Zahir Abdullah, Advocate

For the Respondents:
Mr. Furqaan Yaqoob, Government Advocate

Case Title: Sajad Ahmad Bhat v. Union Territory of Jammu and Kashmir & Ors.
Case Number: HCP No. 183/2025
Bench: Justice Moksha Khajuria Kazmi