SRINAGAR: The High Court of Jammu and Kashmir and Ladakh has upheld the preventive detention of a Kupwara resident under the Public Safety Act, observing that the detention order was based on fresh and independent material, including a 2023 criminal case, and could not be treated as a revival of earlier detention orders that had been quashed or revoked.
A bench of Justice M.A. Chowdhary dismissed a habeas corpus petition filed by Firdous Ahmad Shah of Shart-Muqam, Lolab, challenging detention Order No. 17-DMK/PSA of 2025 dated May 1, 2025, passed by the District Magistrate, Kupwara.
The judgment was reserved on September 15 and pronounced on September 25.
Shah, represented by advocate B.A. Tak, had challenged his detention under Section 8(1)(a)(i) read with Section 8(2)(ii) of the Jammu and Kashmir Public Safety Act, 1978, under which he was detained with a view to preventing him from acting in a manner prejudicial to the security of the Union Territory of Jammu and Kashmir.
The Union Territory of J&K, the District Magistrate, Kupwara, and the Senior Superintendent of Police, Kupwara, were represented by Government Advocate Faheem Nisar Shah.
The petitioner argued that the material relied upon by the detaining authority was stale and there was no live and proximate link between the alleged activities and the necessity for preventive detention. It was also contended that the grounds of detention were vague and that Shah had previously been detained under the PSA, with the earlier detention orders either quashed by the court or revoked by the government.
The petitioner further relied on the fact that he had been granted bail in the criminal cases cited by the authorities. His counsel also pointed to FIR No. 67/2023 registered at Police Station Lalpora under provisions of the Arms Act and the Unlawful Activities (Prevention) Act, submitting that the investigation and prosecution had subsequently undergone a material change, including his discharge from certain UAPA offences and his prosecution under the Arms Act.
The respondents, however, maintained that the latest detention order was not founded merely on the old FIRs or the grounds forming the basis of the earlier detention orders. They argued that the earlier cases constituted only the antecedent background, while the subjective satisfaction for the present detention was based on subsequent and independent material arising from FIR No. 67/2023.
The respondents also argued that grant of bail or the fact that some offences invoked during investigation did not ultimately survive did not, by itself, render preventive detention illegal. Preventive detention, they submitted, operated in a different field from ordinary criminal prosecution and was concerned with preventing anticipated prejudicial activities.
The High Court noted that Shah had been detained under the PSA on three earlier occasions. He was first detained on September 18, 2018, following his involvement in FIR No. 91/2018 registered at Police Station Lalpora. That detention was quashed by the High Court on December 31, 2018. He was detained again on January 28, 2019, and that order was quashed on July 11, 2019. A third detention order dated August 2, 2019 was revoked by the Government of J&K on April 12, 2020.
The present detention was therefore his fourth under the PSA.
On the central issue of whether earlier quashed or revoked detention orders could form the basis of a fresh detention, the court drew a distinction between relying on the same grounds and considering subsequent conduct as part of the antecedent background.
“There can be no quarrel with the proposition that where an earlier detention order has been quashed by a Court, the grounds which stood nullified cannot be treated as the foundation of a subsequent detention order,” Justice Chowdhary observed.
“The subsequent order must have its foundation in fresh and independent material,” the court said.
However, it added that this principle did not mean that subsequent conduct of a detenue became immune from consideration merely because he had earlier been subjected to preventive detention.
“The real question is whether the impugned order is substantially founded upon the very grounds which had earlier been nullified or whether there is fresh material which independently furnishes the basis for the present subjective satisfaction,” the court held.
After examining the detention record, the High Court concluded that the present case fell into the latter category. It said the impugned detention order could not be characterised as “a mere reproduction or revival of the earlier detention order(s).”
The court held that the petitioner’s subsequent involvement in FIR No. 67/2023, along with the material and developments arising from it, constituted an independent subsequent circumstance. The earlier cases, it said, were relevant only as antecedent background and did not constitute the sole foundation of the detention.
The court also rejected the argument that the incidents dating back to 2018 and 2019 had become too stale to sustain preventive detention. It said the issue of proximity had to be considered in the context of the entire chain of circumstances and the nature of the alleged activities.
“The record refers to subsequent criminal activity resulting into registration of FIR No.67/2023 and the subsequent investigation/prosecution,” the court observed, adding that it was therefore unable to accept the submission that the detention order rested solely upon stale incidents.
The High Court further noted that preventive detention was concerned with a reasonable prognosis of future conduct based on past conduct and surrounding circumstances, and that the relevant question was whether the material relied upon retained a rational nexus with the apprehension sought to be prevented.
On the petitioner’s release on bail and the alteration of charges in the criminal proceedings, the court said these circumstances did not, by themselves, invalidate the detention order.
It referred to Supreme Court judgments including Haradhan Saha v. State of West Bengal and Kamarunnissa v. Union of India, noting the distinction between punitive detention following a finding of guilt and preventive detention aimed at preventing anticipated prejudicial conduct.
The court also rejected the contention that the grounds of detention were vague. It said the constitutional requirement was not that the grounds should meet the standard of a charge-sheet or a criminal court judgment, but that the detenue should be able to understand the substance of the allegations and the material that led to the detaining authority’s satisfaction so as to make an effective representation.
In the present case, the court found that the grounds referred to the relevant criminal case, Shah’s antecedents, the material considered by the detaining authority and the apprehension regarding his future conduct. The grounds, it said, were supplied and explained to him in a language he understood.
The court also found that the material relied upon by the detaining authority had been furnished to the detenue and that he had been given an opportunity to make a representation.
“Personal liberty is a cherished constitutional value and preventive detention must remain within the confines of the statute and the Constitution,” the court observed.
At the same time, it held that where the competent authority had considered relevant material, recorded the requisite subjective satisfaction, communicated the grounds in an intelligible manner and afforded the detenue an opportunity of representation, the court could not substitute its own assessment merely because another view might also be possible.
On an overall consideration of the detention record, the High Court found that the order was founded upon relevant material, that it was not merely a revival of the earlier detention orders, and that FIR No. 67/2023 and the material arising from it provided a subsequent factual basis for the detaining authority’s satisfaction.
The court also held that the plea of staleness and absence of a live link was not made out in view of the subsequent material, while the grounds of detention were sufficiently clear and intelligible. It further found no violation of Article 22(5) of the Constitution or the mandatory procedural safeguards under the PSA.
“It is, therefore, not possible for this Court to hold that the subjective satisfaction recorded by the detaining authority is vitiated by non-application of mind, irrelevant material, vagueness, staleness or absence of proximity,” the court held.
Consequently, Justice Chowdhary upheld detention Order No. 17-DMK/PSA of 2025 dated May 1, 2025, passed by the District Magistrate, Kupwara, and dismissed the habeas corpus petition. The court also directed that the scanned detention record produced by the respondents be returned through their counsel.
