Allowing a habeas corpus petition filed by Ajaz Ahmad Seh through his father, the Court directed the authorities to release him forthwith, provided his custody was not required in connection with any other case or under any other lawful order.
Justice Wasim Sadiq Nargal passed the judgment on October 30, 2026, while deciding HCP No. 279/2025. The judgment was reserved on October 22 and uploaded on October 31.
The Court set aside detention order No. 34/DMP/PSA/2025 dated July 28, 2025, issued by the District Magistrate, Pulwama, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, observing that the material relied upon did not establish a legally sustainable basis for depriving the petitioner of his personal liberty through preventive detention.
Emphasising the distinction between preventive detention and criminal prosecution, the Court observed that the former was a precautionary measure and could not be used as a substitute for the ordinary criminal process.
“The mere existence of allegations of a serious nature cannot, by itself, justify recourse to preventive detention,” the Court observed, adding that the authority must examine whether the circumstances genuinely warrant such detention and whether the statutory purpose could appropriately be achieved through ordinary criminal law.
The petitioner, a resident of Shehpora in Rajpora tehsil of Pulwama district and a driver by profession, had been taken into preventive custody on the basis of a dossier submitted by the Senior Superintendent of Police (SSP), Pulwama.
According to the grounds of detention, Seh was allegedly in contact with Aashiq Ahmad Nengroo, described as a terrorist handler affiliated with Jaish-e-Mohammad (JeM), through a specified telephone number and the encrypted messaging application Zangi, accessed through a secured Virtual Private Network (VPN).
He was also accused of functioning as an Over Ground Worker (OGW) by allegedly providing food, shelter, clothing, transportation and information to active terrorists, including Haris Nazir, a resident of Kachipora in Rajpora, Pulwama.
The police dossier further alleged that the petitioner was in contact with terrorist handlers based in Pakistan-occupied Kashmir and Pakistan, was being encouraged to join terrorist ranks and motivate local youth to do the same, and was supplying information regarding the movement of security forces.
The grounds also referred to the possibility of his involvement in targeted killings of non-local labourers, political workers, Kashmiri Pandit employees and police personnel.
The detention record additionally mentioned that Seh had been bound down under Sections 126 and 170 of the Bharatiya Nagarik Suraksha Sanhita, 2023, on April 21, June 4 and July 4, 2025. Despite these proceedings, the police alleged that he continued activities involving intimidation and obstruction of the daily activities of local residents.
However, examining the grounds of detention and the material produced by the respondents, Justice Nargal found that the allegations had not been supported by adequate particulars to justify the invocation of the extraordinary preventive detention law.
The Court noted that the grounds did not specify the dates on which the alleged communications took place, the nature or substance of the information purportedly exchanged, the particular acts through which logistical assistance was allegedly provided, or the specific incidents forming the basis of apprehension regarding future prejudicial activities.
“The mere assertion that the detenue used an encrypted application or a VPN, or remained in contact with persons alleged to be associated with terrorist organisations, cannot, without further particulars and relevant supporting material, furnish an adequate basis for curtailing personal liberty through preventive detention,” the judgment recorded.
The Court further held that the allegations, however serious, could not replace specific and intelligible grounds enabling a detenue to understand the case against him and make an effective representation.
It observed that if the investigating agency possessed evidence indicating that the petitioner had used electronic communications to coordinate terrorist activities, shared information about security-force movements or provided assistance to members of a terrorist organisation, the material could have been examined and acted upon under the applicable criminal law.
Referring to the Unlawful Activities (Prevention) Act, 1967, the Court observed that the authorities were not precluded from investigating the alleged activities, collecting electronic and other evidence, and initiating prosecution in accordance with law, subject to the ingredients of the relevant offences being satisfied.
“The question, therefore, is not whether the allegations could be regarded as serious, but whether the material disclosed a legally sustainable necessity for resorting to preventive detention rather than proceeding under the ordinary criminal process,” the Court observed.
It further noted that the detention grounds did not explain why the alleged activities necessitated preventive detention or identify any particular circumstance demonstrating that the ordinary legal process would be inadequate.
The Court also took note of the manner in which the detention grounds had been formulated, finding substantial similarities between the police dossier and the grounds issued by the District Magistrate.
It observed that although similarity between a police dossier and detention grounds was not, by itself, sufficient to invalidate a detention order, the detaining authority was legally required to independently assess the material and arrive at its own subjective satisfaction.
“The statutory responsibility cannot be discharged by mechanically adopting the narrative supplied by the police,” the judgment stated.
According to the Court, the grounds substantially reiterated allegations concerning the petitioner’s alleged association with terrorist handlers, use of encrypted communications and role as an OGW, without sufficiently demonstrating an independent assessment of the circumstances necessitating preventive detention.
The Court held that the substantial reproduction of the police dossier, coupled with the absence of adequate particulars concerning the alleged activities, rendered the subjective satisfaction recorded by the detaining authority legally vulnerable.
In support of its findings, the Court referred to the judgment in Noor-ud-Din Shah v. State of J&K & Others, reported as 1989 SLJ 1, in which a detention order was quashed after the grounds were found to be a verbatim reproduction of the police dossier.
In that case, the Court had held that the District Magistrate could not act merely as an agent of the police and was under a legal obligation to independently examine whether the alleged activities were likely to affect public order and whether preventive detention was necessary to prevent their recurrence.
Justice Nargal observed that the principle laid down in the said judgment applied to the present case, as the grounds and dossier were couched in substantially identical language, giving rise to an inference that the detaining authority had failed to independently evaluate the material.
The judgment also relied upon the Supreme Court’s ruling in Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, which held that one of the questions courts must examine while testing the legality of preventive detention is whether the ordinary law of the land was sufficient to deal with the situation.
The Court also referred to Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14, in which the Supreme Court emphasised that preventive detention laws must be strictly construed and personal liberty should not be jeopardised unless the case falls within the parameters of the governing law.
Citing the Constitution Bench ruling in Dr Ram Krishan Bhardwaj v. State of Delhi, 1953 SCR 708, the Court reiterated that preventive detention constituted a serious invasion of personal liberty and that the constitutional safeguards against its improper exercise had to be “jealously watched and enforced by the Court”.
During the proceedings, counsel for the petitioner, Mohammad Ayoub Bhat, assisted by advocate Mahajabeen Bhat, had challenged the detention on several grounds, including non-application of mind, vagueness of allegations, procedural violations and denial of constitutional safeguards.
The petitioner’s counsel argued that the District Magistrate had relied upon an undated police report without independently examining the allegations and had substantially reproduced the contents of the SSP’s dossier.
It was also contended that the petitioner had not been supplied with all the documents relied upon by the detaining authority, thereby depriving him of the opportunity to make an effective representation.
The petition further alleged that the petitioner had been denied adequate access to legal assistance, his relatives and the concerned authorities during detention. His counsel also questioned compliance with the statutory requirements relating to approval of the detention order and reference of the case to the Advisory Board.
Another contention was that the detention order and grounds had been communicated in technical English, which the petitioner could not adequately understand, as he had studied only up to Class XII and worked as a driver.
The petitioner’s counsel maintained that the alleged communications with terrorist handlers had not been substantiated through evidence supplied to him and that any criminal conduct, if established, could be dealt with under the ordinary criminal law.
Opposing the petition, Government Advocate Jahangir Ahmad Dar submitted that the District Magistrate had passed the detention order after considering the police dossier and accompanying material and arriving at the requisite subjective satisfaction.
The respondents maintained that the detention was necessary to prevent activities prejudicial to the security of the State and that the constitutional and statutory safeguards under Article 22(5) of the Constitution and Section 13 of the Public Safety Act had been complied with.
They submitted that the detention warrant had been executed on July 29, 2025, by ASI Bashir Ahmad of District Police Lines, Pulwama, following which the petitioner was lodged in District Jail, Udhampur.
The Government also maintained that the detention order and grounds had been read over and explained to the petitioner in a language understood by him and that his signatures had been obtained on the execution report.
It was further argued that the petitioner had been informed of his right to submit a representation to the Government or the detaining authority but had not availed himself of the remedy. The respondents denied that the detention order had been passed mechanically and maintained that the allegations were specific, relevant and proximate.
Considering the rival submissions and the detention record, the High Court concluded that the impugned order suffered from material legal infirmities, particularly the absence of sufficiently detailed grounds, failure to establish the necessity of preventive detention and lack of demonstrated independent application of mind by the District Magistrate.
The Court clarified that it did not minimise the seriousness of allegations involving terrorist organisations or activities prejudicial to the security of the State, but emphasised the need to maintain a balance between national security and individual liberty.
“A perfect balance has to be maintained between the protection of the security of the State and the preservation of personal liberty,” the Court observed, adding that the former must be pursued within the limits of law and the latter could not be curtailed except in strict conformity with the procedure established by law.
Holding that the detention order could not be sustained in law, the Court allowed the habeas corpus petition and quashed the July 28, 2025, detention order issued by the District Magistrate, Pulwama.
The respondents were accordingly directed to release Ajaz Ahmad Seh forthwith, subject to the condition that his custody was not required in connection with any other case or pursuant to any other lawful order.
The petition was disposed of accordingly.
