SRINAGAR: The High Court of Jammu and Kashmir and Ladakh has quashed a four-year-old Public Safety Act detention order against an Anantnag man, holding that the authorities failed to satisfactorily explain the prolonged delay in executing the order and appeared not to have considered his acquittal in one criminal case and bail in others.
Justice M A Chowdhary set aside the detention order issued against Firdous Ahmad Dar of Halmulla Sangam, Bijbehara, on June 25, 2022, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The court held that the subjective satisfaction recorded by the District Magistrate, Anantnag, “cannot be sustained in law” in view of the circumstances surrounding the detention.
The judgment was pronounced on September 14, 2026, on Dar’s petition challenging the detention order. He was represented by Advocate Wajid Mohammad Haseeb, while the respondents, including the Union Territory of J&K, District Magistrate Anantnag and Senior Superintendent of Police Anantnag, were represented by Government Advocate Ilyas Nazir Laway.
The detention order had directed Dar’s preventive detention with a view to preventing him from acting in any manner prejudicial to the security of the State.
Challenging the order, Dar’s counsel argued that although the detention order was passed on June 25, 2022, it was not executed for a considerable period. He had approached the High Court at the pre-execution stage and an interim order was passed on September 27, 2022.
The petitioner maintained that the delay could not be attributed to him and argued that if the authorities believed he was absconding or concealing himself to evade execution of the detention order, they should have taken measures available under Section 12 of the PSA. The failure to do so, he argued, undermined the claim that he had deliberately evaded execution.
Another major contention was that one of the four FIRs relied upon against him, FIR No. 384/2007, had ended in his acquittal on October 25, 2018. His counsel also submitted that he had been granted bail in the other criminal cases, but these developments were either not placed before the Detaining Authority or were not considered while passing the detention order.
The petitioner argued that the omission amounted to non-application of mind and vitiated the subjective satisfaction forming the basis of the detention.
The respondents opposed the petition, maintaining that the detention order could not be executed because Dar, after obtaining knowledge of the order and related documents, deliberately evaded arrest. The authorities argued that a person who himself evades execution of a detention order could not be allowed to benefit from the delay caused by his own conduct.
They further relied upon charge-sheets and criminal cases against Dar, including allegations relating to possession of arms, and maintained that the material before the Detaining Authority disclosed activities prejudicial to the security of the State. The respondents also argued that the High Court should not substitute its own satisfaction for that of the Detaining Authority while exercising writ jurisdiction.
Justice Chowdhary, while examining the rival submissions, emphasised that preventive detention is an extraordinary power and is fundamentally different from punitive detention.
“Its object is not to punish a person for an act already committed, but to prevent him from engaging in conduct which is apprehended to be prejudicial to the security of the State or maintenance of public order,” the court observed.
The court noted that although preventive detention can be based on an assessment of future conduct arising from past activities, the extraordinary nature of the power requires authorities to strictly comply with constitutional and statutory safeguards.
“The subjective satisfaction contemplated by the Act must be genuine, founded upon relevant material and arrived at after consideration of all material facts having a bearing upon the necessity for preventive detention,” Justice Chowdhary said.
On the question of delay, the court referred to Supreme Court judgments which hold that the effect of delay in executing a preventive detention order depends on the facts of each case. While delay attributable to a detenu’s deliberate evasion may, if satisfactorily established, be explained, the mere assertion that a person was absconding is not enough.
The High Court also noted that Section 12 of the PSA specifically provides for situations where a person against whom a detention order has been passed is believed to have absconded or concealed himself to prevent execution of the order.
“Where a prolonged delay is sought to be justified solely on the ground that the petitioner was absconding, the respondents must place before the Court credible material demonstrating the efforts actually undertaken to secure his presence,” the court held.
The court stressed that there is no absolute rule that delay by itself invalidates a detention order. What matters is the explanation for the delay and the circumstances that caused it.
“The question, therefore, is not merely how much time elapsed, but what caused the elapsed time,” the court observed.
In Dar’s case, the High Court found that the record did not support the respondents’ contention that he had absconded and deliberately evaded execution of the order. The court noted that Dar had challenged the detention order at the pre-execution stage on September 27, 2022, when the High Court stayed it.
More importantly, the court recorded that Dar had attended proceedings in a criminal case arising out of FIR No. 22/2011 of Police Station Kothibagh before the trial court on June 30, 2022—just days after the detention order was passed and in a case that had itself been relied upon as a basis for his detention.
The respondents, the court noted, had neither explained nor placed on record material showing that they had invoked Section 12 of the PSA or taken effective steps to execute the detention warrant.
“Having not taken any step, despite the availability of the petitioner, have thus failed to explain the inordinate delay in execution of the detention order,” the court held, adding that the delay “vitiates the detention order itself.”
The High Court then examined the petitioner’s acquittal in FIR No. 384/2007 and the bail granted in the other criminal cases.
The court clarified that an acquittal does not automatically prevent the State from resorting to preventive detention. Criminal prosecution and preventive detention operate in different fields. However, where an acquittal or grant of bail has a material bearing on whether past conduct continues to provide a rational basis for apprehending future prejudicial activity, the Detaining Authority must consider those developments.
“Acquittal in a criminal case does not, in the abstract, create an absolute bar to preventive detention,” the court observed. But such facts, it added, “cannot simply be ignored” where they have a material bearing on the detention decision.
The court also acknowledged that allegations concerning illegal possession or use of arms, particularly when connected with activities prejudicial to State security, can constitute relevant material for preventive detention. However, it said the mere existence of charge-sheets cannot replace the statutory requirement of genuine subjective satisfaction.
“The Detaining Authority must demonstrate a rational connection between the material relied upon and the necessity to prevent the petitioner from acting prejudicially in future,” Justice Chowdhary held.
While observing that it does not sit as an appellate authority over the subjective satisfaction of a Detaining Authority, the High Court said judicial review remains available where the satisfaction is based on irrelevant material, non-application of mind or failure to comply with constitutional safeguards.
It further underlined the importance of personal liberty under Article 21, observing that preventive detention “cannot be exercised mechanically or on the basis of stale, incomplete or selectively presented material.”
In the final assessment, the High Court took into account the considerable delay in execution, the absence of satisfactory material demonstrating effective efforts to execute the order, the subsistence of the interim judicial order and the apparent non-consideration of Dar’s acquittal and bail orders.
“In the circumstances of the present case,” the court concluded, “the subjective satisfaction recorded by the Detaining Authority cannot be sustained in law.”
Allowing the petition, the High Court consequently quashed detention Order No. 39/DMA/PSA/DET/2022 dated June 25, 2022, passed by the District Magistrate, Anantnag under Section 8 of the PSA. The connected application was also disposed of.
