HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

HCP No. 113/2025

Reserved on: 04.06.2026

Date of pronouncement:01.07.2026

Date of uploading: 01.07.2026

Whether the operative part or full

judgment is pronounced Full

Harish Kumar Alias Shally,

Aged 42 years

S/o Narinder Kumar

R/o Ward No. 6, Billawar

District Kathua

Through Brother

Rahul Sharma, Age 39 years

S/o Narinder Kumar

R/o Ward No. 6, Billawar

District Kathua.

….. Petitioner(s)/Appellant(s)

Through: Mr. Sachin Gupta, Advocate with

Ms. Radhika Gupta, Advocate.

q

vs

01. UT of Jammu and Kashmir through

Principal Secretary Home Department,

Civil Secretariat, Jammu.

02.District Magistrate, Kathua.

03.Senior Superintendent of Police,

Kathua.

04.Superintendent, District Jail,

Rajouri.

.…. Respondent(s)

Through: Mr. Suneel Malhotra, GA.

CORAM: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE

JUDGMENT

01. Challenge in this petition has been thrown to detention order dated

22.07.2025 passed by respondent No. 2-District Magistrate, Kathua,

HCP No. 113/2025 Page No. 2

[“the detaining authority”] whereby petitioner came to be detained

and lodged in District Jail, Rajouri.

02. As factual matrix of the case would unfurl, SSP, Kathua [“the

recommending officer”] vide his communication dated 07.07.2025,

describing the petitioner a hardcore criminal and a history-sheeter of

district Kathua, submitted a dossier to the detaining authority,

whereby he furnished details of following crimes against him:

(i) FIR No. 48/2016 under Sections 307/34 RPC, 4/27 Arms Act

of P/S Billawar.

(ii) FIR No. 42/2017 under Sections 307/341/323/34 RPC, 3/25

Arms Act of P/S Hiranagar.

(iii) FIR No. 63/2017 under Sections 307/458/147/323 RPC, 4/25

Arms Act of P/S Nowabad.

(iv) FIR No. 71/2025 under Sections 307/115(2)/351(3)/352(2)

BNS of P/S Hiranagar.

(v) Preventive action under Section 39/128 BNSS of P/S Rajbagh

dated 15.06.2025.

03. According to the recommending officer, since petitioner was

continuously involved in organised criminal activities over an

extended period and has closed association with hardcore and

notorious criminals, his conduct was prejudicial to the maintenance of

public order.

04. On the basis of aforesaid dossier, the detaining authority has come to

conclude that since legal action against the petitioner under

substantive laws of the land has not proved fruitful in deterring him

from indulging in repeated criminal acts and despite a close

surveillance through history sheet, he has failed to mend his criminal

activities and has become a threat to the maintenance of the public

HCP No. 113/2025 Page No. 3

order, it was imperative to detain him under the provisions of Public

Safety Act, 1978 [“PSA”, for short].

05. Petitioner is aggrieved of the impugned order inter alia on the ground

that his detention apart from being illegal and arbitrary in nature, is

legally flawed as the provisions enshrined in Article 22(5) of

Constitution of India have been flagrantly violated. It is contention of

the petitioner that grounds of detention, those were furnished to his

brother were written in English language, he is not well versed with.

06. It is urged by the petitioner that the sole basis for detaining him is

multiple FIRs registered against him, whereas he has been bailed out

in all the FIRs by the competent Courts and investigation in several

cases was under progress. In such a scenario, according to the

petitioner, his detention is an abuse of the process of law and amounts

to curtailment of his liberty, which is intrinsic to Article 21 of the

Constitution of India. The grounds of detention, according to the

petitioner, are vague, irrelevant and non-existent, based on extraneous

considerations.

07. Petitioner is aggrieved of the impugned order inter alia on the

following grounds:

(a) That the impugned order of detention has been passed in a

casual manner without application of mind. The grounds of

the impugned order does not even remotely suggest that the

activities as well as liberty of the petitioner is required to be

curtailed or restrained for maintenance of law and order. The

sole basis for the detention of the petitioner is that the

petitioner has been arrayed as an accused in false and

HCP No. 113/2025 Page No. 4

frivolous FIR’s, however, the respondent No. 2 did not accord

due consideration to the fact that the FIR's have been lodged

only at the behest of certain vested interests and the

petitioner has been falsely implicated in the said FIR's.

Moreover, the petitioner has already been admitted to bail by

competent Court of law time and again, however, the

detaining authority has not taken the same into account. The

omission on the part of the detaining authority to give due

emphasis to the fact that the petitioner has been time and

again admitted to bail gives a clear presumption that the

detention order has been passed without application of mind

and on the basis of official records which are contrary to the

grounds of detention.

(b) That the involvement of the petitioner in various FIR's does

not in any manner establish a live link with the detention

order passed by respondent No. 2. It is submitted that the

FIR's wherein challan has been presented before competent

Court of law were lodged in the year, 2016, 20l7 and the

same does not have any nexus of proximity with the grounds

of detention. Moreover, the FIR registered in the year, 2025,

it is to be stated here that the petitioner was admitted to bail

and the investigation of the said case is still going on and

there is nothing material on record so as to conclusively

establish the alleged guilt of the petitioner. Therefore, the

detention authority has gravely erred in curtailing the liberty

of the petitioner which as per the Apex Court is not only

precious but cannot be infringed upon in a casual manner as done

in the instant case at hand. The activities of the

petitioner as relied upon by the respondent No. 2 does not in

any manner endanger the life and liberty of fellow citizens.

Moreover, the alleged activities of which the petitioner has

falsely been accused of does not in any manner create any

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nuisance or threat to law and order and it is not in any

manner disturb the public order at large, therefore, the

detention order is liable to be set aside outrightly.

(c) That the detention order is vitiated and also suffers from non-

application of mind as it does not specify the period of

detention of the petitioner. The grounds of detention only

states that the detention is for the maximum period which is

impermissible under the law governing the preventive

detention. The detaining authority cannot be permitted to fix

the period of detention at its own whims and fancies,

discretion as if to detain the detenue for some ulterior

motives. In the present case, the detention order reeks of

ulterior motives actuated with malafides at the behest of

political elements. The impugned order of detention as such

is contrary to the Public Safety Act and is liable to be

quashed.

(d) That the preventive order and the grounds of detention have

not been served upon the petitioner in the due course of time

and their was a substantial delay in providing the same to

the brother of the petitioner. The brother of the petitioner has

collected the present detention order and the grounds from

the concerned police station with great efforts. The non-

communication of the grounds of the detention order and

serving upon the detention order to the petitioner has

rendered the passing of the detention order and consequent

proceedings nullity, illegal and as such liable to be quashed. That

due to the inordinate delay on the part of the official

respondents in serving the impugned detention order, the

representation could not be made by the petitioner to

Government against the order of detention and the same

tantamount to violation of the fundamental rights of the

petitioner, nor the petitioner was made aware in the local

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language, Hindi/Dogri to make representation to the

Advisory Board. The copy of the impugned detention order is

enclosed herewith and marked as Annexure-I, which though,

has been addressed to the petitioner but the same has been

forwarded to the brother of the petitioner which clearly

substantiate the submission of the petitioner that neither the

detention order has been properly executed nor any

reasonable opportunity has been provided to the petitioner to

make the requisite representation in this behalf.

(e) That the impugned detention order has not been approved by

the Advisory Board under the Public Safety Act (PSA) as such

the detention is liable to be quashed.

(f) That the respondent no.2 in its order as exercised the powers

under Section 8 of the Act and directed the petitioner to be

detained in the District Jail, Rajouri and purport reason in

the detention order is that alleged activities in which the

petitioner is alleged to be involved are highly prejudicial to

maintenance to the public order. The petitioner is astonished

to see that respondent no.2 failed to appreciate that the FIRs

mentioned in the detention order do not fit within the ambit

of the section 8 of the Act. The public order as per the book

Supreme Court on words & Phrases by Justice R P Sethi is

asfollows:

... “Public order”.

Public order is synonymous with public safety and tranquillity

it is the absence of disorder involving which is of local

significance in contradistinction to national upheavals which

as revolution, civil strife, war, affecting the security of the

state. Public order is disturbed, must lad to public disorder.

They can be dealt with under the pouters to maintain law but

not public disorder. This order is no doubt prevented by the

maintenance of law and order also but disorder is a broad

HCP No. 113/2025 Page No. 7

spectrum, which include at one end small disturba.nce and at

the other the most serious and cataclysmic happenings. Dr.

Ram Manohar Lohia V/s State of Bihar and Ors (1966) I SCR

709.

Public order" is what the French call order public and ls

something more than ordinary maintenance of law and order.

The test to be adopted is determining whether an act affects

law and order of public order, is: Does it lead to disturbance of

the public order or it does affect merely an individual living the

tranquillity of the society undistributed. Kanu Biswas V/s

State of W.B AIR 1972 Sc 1656.

" Public order: is the even tempo of the life of the community

taking the county as a whole or even a specified locality,

Disturbance of public order is to be distinguished from acts

directed against individuals, which do not disturb the society

to the extent of causing a general disturbance of public

tranquillity. It is the degree of disturbance and its affect upon

the life of the community in a locality, which determines

whether the disturbance amounts only to a breach of law and

order. The French distinguish law and order and public order

by designating the latter as order public. The latter expression

has been recognized as meaning something more than

ordinary maintenance of law and order. Justice Ramaswami

in writ petition no 179 of 1968 drew a line of demarcation

between the serious and aggravated forms of breaches of

public order, which affect the community or endanger the

public interest at large from minor breaches of peace, which

do not affect the public at the large. The analogy is useful but

not to pushed too far. A large number of acts directed against the

person or individuals may total up in to a breach of public

order. It is always a question to ask is: Does it lead to

disturbance of the current of life of the community so as to

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amount disturbance of the public order or does it affect merely

and individual leaving the tranquillity of the society

undisturbed? This question has to be faced in every case on

facts. There is no formula by which one case can be

distinguished from another. Arun Gosh V/s State of W. B.

(1970) 1 SCC 98.

(g) That in all the FIRs, petitioner is either bailed out or the

matters are still under investigation. It is really strange that

how the respondent no.2 has recorded satisfaction in the

present case, if at all the petitioner has violated various

provision of Panel Code and attracts the punishment under

the Ranbir Penal Code, Indian Penal Code or Bharatiya Nyaya

Sanhita only, taking recourse the preventive detention laws

would not be warranted and cannot be substituted for

ordinary law, hence the detention order being violative of

Article 2I and Article 19 and liable to be set-aside.

(h) That the respondent no.2 has relied upon the FIRs registered

in the year 2016, 2017. It is submitted that the cases

registered are at their fag end and in the case registered on

the basis of FIR 42/2017 under Sections 307 /341 /323 /34

RPC, 3/25 Arms Act, at Police Station Hiranagar, the charge

stands altered and the misleading fact was brought before

the respondent no.2 by respondent no.3 to arrive at a wrong

conclusion, similarly the respondent no.2 did not even bother

to find out the stage of trial and to have a report from the

Public Prosecutor about the pace of prosecution and also the

likelihood of conviction. It is further submitted that the

respondent no.2 did not even bother to examine the

statement of the witnesses deposed in the court to have an

overall view of the matter, the perusal of the detention order dated

22.07.2025 would reflect that the respondent no.2 has

acted in a mechanical manner and has only stamped the

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recommendation of the respondent no.3 without application

of mind and without seeking clarification of the above-said

position stated hereinabove.

(i) That the petitioner has not been supplied with the copies of

the FIRs, chargesheets till date despite the fact that the

impugned detaining order has been passed by the official

respondent no.2 in reference to those FIRs and chargesheets,

however, the respondent no.2 did not bother to serve the

copies of the said FIRs and Chargesheets on the petitioner.

(j) That it is further submitted that the petitioner was never

supplied with the documents relied by the detaining

authority nor has been the detention order read over to the

petitioner, the petitioner is only in possession of the

documents annexed with the petition and neither the copies

of the FIRs nor chargesheets have been provided to the

petitioner . The petitioner is not able to understand what has

become the basis for passing the present detention order

merely on the FIR numbers and no substantial material is

relied upon by the detaining authority, this is the case of

sheer non application of mind on the part of detaining

authority and due to non-compliance of the procedure on the

part of the official authorities, the petitioner could not make

representation before the official authorities in the due

course of time.

(k) That the petitioner till date has not been made understand

why he has been detained, moreover, it is relevant to note

that the service of the documents upon the brother of the

petitioner in English was no sufficient compliance with the

requirement contained in Article 22(5) as neither the brother

of the petitioner nor the detenue understands the grounds as the

same are in a language which neither the petitioner nor

his brother understands.

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(l) That it has been held in Surjeet Singh versus Union of

India that service of grounds in English was not sufficient

compliance with the requirement contained in Article 22(5).

Moreover, if the grounds are explained verbally to the

detenue and nothing in writing is left with him in a language

he understands, it has been heled that the purpose of Article

22(5) is not served. However, in the instant case, the official

respondents have not even bothered to explain the grounds

of detention to the detenue in the language he understands

and the due procedure stipulated in law has not been

complied with.

(m) That in Lallubhai Jogibhai Patel Versus Union of India,

the detenue did not know English but the grounds were

drawn in English and the detaining authority stated that the

Police Inspector, while serving the grounds of detention to the

detenu, fully explained the grounds in Gujarati, which he

could follow, but no translation of the grounds in Gujarati

was given to him, it was held that there is no sufficient

compliance of Article 22(5). The detenue in the instant case

has not been made to understand the detaining order as well

as the grounds of detention in the language the detenue

comprehends.

(n) That the impugned FIRs which have formed the basis for the

respondent no.2 to detain the petitioner were registered way

back in the year 2016, 2017 and the petitioner has been

bailed out by the competent court of law. It is relevant to note

that the petitioner has never absconded and has also never

violated the bail conditions. Moreover, the official authorities

have never sought for the cancellation of the bail of the

petitioner before the competent court of law and therefore, one

fails to understand as to what formed the basis for the

respondent no.2 to pass the impugned detaining order. Also,

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it is relevant to note that the alleged preventive action against

the petitioner cannot form the basis to detain the petitioner

and curtail the liberty of the petitioner, therefore, in the

present facts and circumstances of the case, the detaining

order suffers from serious recons of law and is liable to be

quashed.

(o) That Right to liberty as guaranteed under Article 21 of the

constitution is an intrinsic right. The said exception granted

to the concerned authorities to pass preventive detention but

while passing such orders, the authority concerned is

required of a person and such power shall be exercised in a

manner which may have the trappings of depriving a person

of the guaranteed liberty. In short an exceptional case has to

be made out for passing the preventive order but while doing

so procedural safeguards are to be respected. Breach in

observing the procedural safeguards gives right to the

detenue to claim that he has been prejudiced as his liberty

has been curtailed de hors the law. In the present case the

procedural safeguards have been flouted by the authority,

the petitioner was never supplied with the material relied by

the District Magistrate for invoking PSA against the

petitioner. Moreover, the detention order and grounds were

never read over and explained to the petitioner neither by the

District Magistrate nor by the Superintendent.

(p) That in the case in hand the respondent no.2 has recorded

the satisfaction for passing the detention order. The

question whether the pre-judicial activities of the petitioner

necessitating to pass the order of the detention is

approximate to the time when the detention order is made or

live link between the pre-judicial activities. In the present

case, there is an undue and long delay between the pre-judicial

activities and passing of order of detention. The bare

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scrutiny of order impugned reflects that the respondent No.

2 has not satisfactorily explained such delay nor any

explanation is given as to why such delay has occasioned. As

such the impugned order is liable to be set-aside.

08. The plea has been opposed on the other side by the respondents,

primarily on the ground that none of the legal, constitutional or

statutory right of the petitioner has been violated. According to the

respondents, detention of the petitioner was ordered after due

consideration of the dossier received from SSP, Kathua, whereby he

was continuously and repeatedly found involved in criminal activities

such as attempt to murder, illegal possession of weapons, etc. for the

past several years, which was prejudicial to the maintenance of public

order and tranquillity. It is contended that the material submitted by

the sponsoring authority showed a continuous pattern of conduct on

the part of the petitioner to threaten law and order.

09. It is contended by the respondents that the grounds of detention, the

detention order and all the relevant documents, comprising of total 85

leaves, were not only read over and explained to the detenue in the

language which he understood, but his signatures as a token of receipt

were also obtained from him. The petitioner and his father namely

Narinder Kumar were informed about his detention and the grounds

on which he came to be detained. The detention of the petitioner was

ordered after due consideration of the dossier received from SSP,

Kathua. All the norms were followed by the detaining authority while

HCP No. 113/2025 Page No. 13

detaining him under PSA. It is contended that despite registration of

multiple FIRs against him, petitioner did not mend his ways and

rather continued in repeated anti-social activities those were highly

prejudicial to the maintenance of public order. Detention was carried

out in compliance with the provisions of PSA. He was informed about

his right to make representation to the Government against his

detention and the Home Department vide its communication dated

18.08.2025 has intimated the detaining authority that after

considering representation received on behalf of the detenue, same

was found without merits. The said decision was endorsed to

Superintendent District Jail, Rajouri, who vide his communication

dated 19.08.2025 has informed the detenue about disposal of his

representation. The Home Department vide Government order dated

25.07.2025 has approved the impugned detention order dated

22.07.2025 and thereafter confirmed the same vide order dated

18.08.2025, whereby petitioner was directed to be detained for a

period of three months in the first instance from the date of detention

i.e., 25.07.2025, which period came to be extended under law from

time to time.

10. Respondents have prayed for dismissal of the petition.

11. The petitioner after filing of counter affidavit by the respondents has

come forward with the rejoinder stating inter alia that he is suffering

from mental ailments and was diagnosed with depression. He was

admitted in hospital for a brief period and was receiving medical

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treatment prior to his detention on 22.07.2025. His medical condition

worsened during the period of his detention; he was provided

alternative medicines, which are having severe impact to his mental

health and Superintendent of concerned jail was even directed by this

Court vide order dated 19.01.2026, to ensure proper medical

treatment to him and submit a report. Apart from the health ground

urged by the petitioner, the rejoinder submitted by the petitioner is

nothing but a copy paste of the grounds urged in the memo of

petition.

12. Having heard rival contentions of the parties, I have given my

thoughtful consideration to the facts and circumstances obtaining the

case and the legal position attending the field.

13. A perusal of the record reveals that detention of the petitioner is

fundamentally flawed for the simple reason that detaining authority

hastened to pass the impugned order without waiting for the outcome

of the preventive measures initiated against him.

14. A perusal of the record reveals that preventive action came to be

initiated against the petitioner with respect to an incident of

15.06.2025 and impugned order of detention came to be passed

against him on 22.07.2025 i.e., within 38 days from the preventive

measure initiated in Police Station, Rajbagh.

15. Chapter-IX BNSS deals with security for keeping peace and for good

behaviour and an Executive Magistrate in terms of Section 129

BNSS, on receipt of information within his local jurisdiction, has

HCP No. 113/2025 Page No. 15

been vested with the power to require habitual offenders, such as,

robbers, thieves or those involved in kidnapping, extortion, forgery or

protecting thieves or breaching public peace and those who habitually

commit or abet offences related to Drugs and Cosmetics Act,

Foreigners Act, Customs Act and laws relating to hoarding,

profiteering or corruption or the persons deemed so “desperate and

dangerous” that there being at large without security is hazardous to

the community, to show cause as to why he/they should not be

ordered to execute a bail bond for good behaviour up to 03 years.

Pertinently, if immediate measures pending inquiry are imperative,

Magistrate has also been vested with the jurisdiction to require an

individual to execute an interim bond under sub-Section 3 of Section

135.

16. The preventive measures within the criminal justice framework came

to be inserted by the legislature in its wisdom to prevent recurring

criminal conduct of the offenders with an avowed object to protect

public order by requiring the repeat offenders to show-cause as to

why they be not asked to execute a bond for good behaviour. The

preventive detention, on the other hand under PSA is a separate

administrative measure and the fact that an individual is facing

security proceedings under BNSS does not legally prevent the

executive from invoking provisions of PSA. In other words, both the

measures can co-exist.

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17. Nobody can take an exception to the settled proposition of law that

security of the state and maintenance of public order is absolute

domain of the administration and subjective satisfaction of the

detaining authority to detain a person under PSA is not subject to

objective assessment of the writ Court. However, when a person is

facing preventive measures and has been required to execute a bond

for good behaviour under BNSS, the detaining authorities under PSA

are obliged to independently apply mind and demonstrate as to why

security proceedings were not sufficient to deter the offender from

engaging in the activities prejudicial to the public order because

conduct of the authority, exercising such a vast jurisdiction is required

to be in consonance with the concept of justice and fairness and in

tune with the concept of fundamental right of life and liberty captured

in Article 21 of the Constitution of India.

18. Hon’ble Supreme Court in Ameena Begum vs. The State of

Telangana and Ors; 2023(4) Crimes 292 observed that any order of

a detaining authority evincing that it runs beyond his powers, as are

actually conferred, would not amount to a valid order made under the

preventive detention laws. It was held that when constitutional courts

are called upon to test the legality of detention orders they must

examine the following 10 points:

(i) “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

HCP No. 113/2025 Page No. 17

predicated, would be the sine qua non for the exercise of the

power not being satisfied;

(ii) 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;

(iii) power has been exercised for achieving the purpose for

which it has been conferred, or exercised for an improper

purpose, not authorized by the statute, and is therefore

ultra vires;

(iv) the detaining authority has acted independently or under

the dictation of another body;

(v) 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;

(vi) 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;

(vii) 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;

(viii) 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;

(ix) 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

(x) the timelines, as provided under the law, have been strictly

adhered to.”

19. If present case is approached with the aforesaid principle of law, what

manifests is that impugned order is not only mechanical in nature but

contains arbitrary reasoning and ignores material facts on the record.

HCP No. 113/2025 Page No. 18

Neither detaining authority has demonstrated any “compelling

reason” to invoke PSA against the petitioner nor reflected an

independent application of mind as to why security proceedings

initiated under BNSS were proved insufficient to prevent him from

engaging in activities prejudicial to the maintenance of public peace,

tranquillity and public order. The grounds of detention after a passing

reference to the security proceedings against the petitioner is

ominously silent about further details as to whether petitioner at any

point of time was served upon a notice by the Executive Magistrate to

show cause why he should not be ordered to execute a bail bond for

his good behaviour not exceeding 03 years. There is also nothing in

the record to suggest that petitioner was required by the Magistrate to

execute an interim bond as an immediate measure under sub-Section

3 of Section 135 BNSS and if he executed any such bond whether he

violated the conditions thereof. It needs a specific mention that

detention of an individual follows non-compliance of the final bond

executed under Section 136 BNSS and ordinarily it happens only

after a final order is passed following a complete inquiry. Preventive

detention under PSA cannot be invoked unless there is emergency

based justification which ordinary law of the land cannot address.

20. For the foregoing reasons, since impugned order is found

fundamentally flawed and does not sustain on this ground alone, rest

of the grounds urged in the memo of petition are not required to be

evaluated. Hence, present petition is allowed and impugned order is

HCP No. 113/2025 Page No. 19

set aside. Respondents are directed to immediately release the

petitioner from detention provided he is not required in any other

case.

21. Disposed of.

(Rajesh Sekhri)

Judge

Jammu

01.07.2026

Sushant

Whether the judgment is speaking? Yes/No

Whether the judgment is reportable? Yes/No