Jammu & Kashmir and Ladakh HC: In an intra-court appeal against the Single Judge’s dismissal of a habeas corpus petition, the Division Bench of Sanjeev Kumar* and Mohd Yousuf Wani, JJ., allowed the appeal and quashed the detention order passed under the J&K Public Safety Act, 1978, holding that the detention suffered from non-application of mind, factual errors, unexplained delay of 18 days in execution, and failure to show awareness of the detenu’s custody and bail status. The Court held that preventive detention cannot be used as a substitute for ordinary criminal law. Articles 21 and 22(5) of the Constitution of India, must be followed.
Background
The appellant had approached the writ court by filing habeas corpus writ petition to challenge his detention made by District Magistrate (referred to as, “detaining authority”) under Section 8 of J&K Public Safety Act, 1978 (for short, “the Act of 1978”) considering the facts of FIRs registered against him, alleged criminal activities and bovine smuggling. The record showed that he had earlier been detained under the Act of 1978, but detention had been quashed by the High Court in 2019. Later, fresh detention proceedings were initiated again in 2023 and 2025. The detention order was challenged. Appellant was already in custody when the order was passed and he had been granted bail. Also, the order wrongly referred to 5 sections of the Bhartiya Nyaya Sanhita, 2023 (BNS) whereas the FIR itself contained only 3 sections, which was a patent factual error demonstrated non-application of mind. The detention order was executed after an unexplained delay of 18 days, which severed the live-link between the prejudicial activities and the detention order. The detaining authority had written a letter to the Director General of Prisons (DGP) with regard to jail allotment, that the decision to detain had already been sought. Appellant, being a semi-literate person, was not supplied translated copies of the detention grounds and materials, rendered his right under Article 22(5) of the Constitution of India.
Ratio and Analysis
The Court noted in Rekha v. State of T.N., (2011) 5 SCC 244, that a detention order founded on vague grounds or passed without application of mind cannot be sustained. The Court also relied on Kamarunnissa v. Union of India, (1991) 1 SCC 128 and Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14, to emphasise that preventive detention cannot be used as a substitute for the ordinary criminal law, and where a person is already in custody, the detaining authority must have cogent material to be satisfied that there is a real possibility of his release and subsequent prejudicial conduct. No such satisfaction was visible from the impugned order.
The Court also found that the detaining authority had failed to notice the existing custody of appellant and found no mention in the grounds of detention. The detaining authority had not shown any awareness to granted bail, dismissal of bail application. The Court noted in Rekha v. State of T.N. (Supra) that the Supreme Court had already quashed a detention order in similar circumstances where the authority was not even aware whether the bail application was pending, the subjective satisfaction stands vitiated and detention order cannot be sustained.
According to the Court, a serious concern was the factual inaccuracy in the detention record where it wrongly mentioned 5 sections of BNS i.e., 109, 126(2), 115(2), 309(4) and 351(3), whereas the FIR contained only Sections 109, 126(2), and 309(4) BNS. It was a patent factual error going to the substance of the allegations, established that detaining authority acted mechanically on police dossier without applying its independent mind. This was also a violation of Article 22(5) of the Constitution of India i.e., Constitutional right of detenu to make an effective representation against detention. The Court referred to Hadibandhu Das v. D.M., Cuttack, 1968 SCC OnLine SC 136, where the Supreme Court held that a detention order based on factually incorrect material is unsustainable in law.
As far as the unexplained delay of 18 days in execution of detention without any explanation, was concerned, the Court relied on Sk. Nizamuddin v. State of W.B., (1975) 3 SCC 395, that such unexplained delay severs live and proximate link between alleged prejudicial activities and the need for preventive detention.
The Court found that what tilted the scales conclusively against the respondents was the detention record itself. Before passing the order, the District Magistrate had written to the Director General of Prisons about jail allotment. The DGP’s office then issued Communication No. DS/PSA dated 26-11-2025, directing that the detenu be lodged in District Jail, Bhaderwah, under preventive detention laws. That direction was issued on the same day as the District Magistrate’s proposal and five days before the detention order of 1-12-2025, which was itself executed only on 19-12-2025. The Court held that a prison-allotment direction issued before the order was even passed established that the decision to detain had already been taken and the order was a mere formality. The Court stated this as gross non-application of mind which demonstrated that the subjective satisfaction required under the Act of 1978 was neither genuine nor independently arrived at. Therefore, the impugned detention order was vitiated in law.
The Court held that the Writ Court had glossed over the vital aspect that the detenu was already in custody, with no satisfaction recorded about any real possibility of his release. It also noted that the Writ Court had confined itself to the fact that the grounds were supplied on the day the warrant was executed. It had not examined the unexplained delay in executing the order itself, even though the detenu was available and in custody in FIR No. 121/2025.
The Court also made observations about the Prevention of Cruelty to Animals Act, 1960, relationship between human and animals, thoughts included ahimsa i.e., non-violence, and dharma i.e., duty, for the seriousness of bovine smuggling that is not only a criminal offence but also hurts the religious sentiments of the people. The Court also observed that animals feel pain, stress and fear, yet the legal system still treats them as property. Under the 1960 Act, a person who tortures, beats or kills an animal can be fined as little as ₹10 to ₹50, leaving almost no fear of the law. The Court said the law should recognise animal feelings and replace such tiny fines with strict jail time and heavy penalties. The Court opined that constitutional safeguards governing preventive detention are mandatory and not directory, and the answer to such criminality lies in diligent and expeditious prosecution under the ordinary criminal law and not in bypassing Articles 21 and 22 of the Constitution.
Decision
The Court held that the impugned order passed by the writ court was unsustainable. The appeal and the habeas corpus petition were allowed, detention order passed by the District Magistrate was quashed. And appellant was directed to be released, if not required in any other case.
[Anwar Jan (Choudhary) v. State (UT of J&K), LPA No. 145 of 2026, decided on 24-9-2026]
*Judgment authored by: Justice Sanjeev Kumar
Advocates who appeared in this case:
For the Appellant: M.A. Goni, Sr. Advocate, Tanveer Ahmad, Advocate
For the Respondent(s): Ilyas Laway, Government Advocate
