Court affirms detaining authority's subjective satisfaction based on intelligence inputs that petitioner acted as OGW aiding active terrorist; procedural safeguards including supply of detention grounds and right to representation held properly complied with
The Jammu & Kashmir and Ladakh High Court, Srinagar Bench, recently dismissed a petition challenging the preventive detention of Aijaz Ahmad Rather under the Jammu & Kashmir Public Safety Act (PSA), 1978. The detention order dated 7th May 2025 was issued by the District Magistrate, Pulwama, placing Rather under custody to prevent him from engaging in activities prejudicial to the security of the State.
The petitioner contended that no First Information Report (FIR) had been registered against him, that the grounds of detention were vague, stale, and lacked a proximate link to his conduct, and that the detaining authority had failed to supply all relevant material to him, denying a meaningful opportunity to make an effective representation.
In its detailed judgment dated 30th October 2026, presided by Justice Rajnesh Oswal, the High Court firmly rejected these contentions. The Court reiterated the settled legal principle that registration of an FIR is not a pre-condition for preventive detention. It emphasized that preventive detention under the PSA is not a punitive measure but a preventive action aimed at preventing individuals from acting in a manner prejudicial to state security. The Court drew heavily from the Supreme Court's ruling in Haradhan Saha v. State of W.B. (1975), which clarified that preventive detention is based on the executive's subjective satisfaction of reasonable probability rather than proof beyond reasonable doubt.
The detention order was supported by a dossier submitted by the sponsoring agency, which established that the petitioner was operating as an Over Ground Worker (OGW) for an active terrorist named Ehsan-ul-Haq from Murran Pulwama. The petitioner allegedly provided logistic support and assisted the terrorist in evading arrest. The Court noted that activities of OGWs are covert, making direct evidence scarce, and intelligence reports often form the primary basis for detention orders. Since the detaining authority specifically named the terrorist and detailed the petitioner's role, the grounds could not be deemed vague or indefinite.
Addressing procedural safeguards, the Court examined the detention record which demonstrated that the petitioner was supplied with the detention order, grounds of detention, dossier, and related documents on 8th May 2025. The petitioner acknowledged receipt of these documents. He was also informed of his right to make representations against the detention order, which he exercised. Both the detaining authority and the Government considered and rejected his representations, communicating the decisions appropriately.
The case was referred to the Advisory Board, which opined in favor of continuing the detention. Subsequently, the Government confirmed the detention order on 6th June 2025. The Court held that the detaining authority's subjective satisfaction, based on relevant material, was not subject to appellate review by the Court, and that the procedural requirements under the PSA had been complied with in letter and spirit.
In conclusion, the Jammu & Kashmir High Court found no merit in the petitioner's challenge and dismissed the petition, thereby upholding the legality and validity of the preventive detention order.
Bottom Line:
Preventive detention under the J&K Public Safety Act cannot be invalidated merely because no FIR was registered against the detenue; where the detaining authority, on the basis of dossier and intelligence inputs, records subjective satisfaction that the detenue was acting as an OGW and providing logistic support to an active terrorist, the grounds cannot be termed vague, and supply of detention order, grounds, dossier and allied material with intimation of right to representation satisfies procedural safeguards.
Statutory provision(s): Jammu & Kashmir Public Safety Act, 1978 (PSA)
Aijaz Ahmad Rather v. UT of J&K, (J&K)(Srinagar) : Law Finder Doc Id # 3007167
