Justice Rajnesh Oswal dismissed a habeas corpus petition filed by Aijaz Ahmad Rather, challenging the detention order issued by the District Magistrate, Pulwama under the Jammu and Kashmir Public Safety Act.

The Court observed that preventive detention is intended to prevent a person from indulging in activities prejudicial to the security of the State, and does not operate on the same footing as criminal prosecution, which requires proof of guilt through a trial.

“....Registration of FIR is not the condition precedent to the issuance of detention order,” the Court observed.

Background

The petitioner had challenged the detention order issued by the District Magistrate, Pulwama, directing his preventive detention to prevent him from acting in a manner prejudicial to the security of the State.

He contended that no FIR had been registered against him and that the detention order was based on vague, stale and irrelevant grounds, without any live or proximate connection between the alleged activities and the decision to detain him. He also alleged that the relevant material relied upon by the detaining authority, along with its translated version, had not been supplied to him, thereby denying him an effective opportunity to make a representation.

Opposing the petition, the respondents submitted that the petitioner had been working as an OGW for active terrorist Ehsan-ul-Haq of Murran, Pulwama, and had been providing him assistance in moving from one place to another to evade arrest.

The respondents further stated that the petitioner had been bound down on March 8, 2025, and April 23, 2025, but had failed to mend his ways. The detaining authority, after examining the dossier and reports submitted by field agencies, had accordingly ordered his detention.

Court's Observation

Addressing the petitioner's principal contention that no FIR had been registered against him, the Court held that registration of a criminal case was not a legal precondition for passing an order of preventive detention.

Relying on the Supreme Court's judgment in Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198, the Court explained the distinction between preventive detention and punitive action.

“The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it,” the Court noted, referring to the Supreme Court's ruling.

The Court observed that the purpose of preventive detention was to restrain a person from engaging in activities considered prejudicial to the security of the State, and that the absence of an FIR did not, by itself, invalidate the detention order.

On examining the detention record, the Court found that the sponsoring agency had submitted a dossier alleging that the petitioner was functioning as an OGW and providing logistical support to an active terrorist, Ehsan-ul-Haq, of Murran, Pulwama.

The Court also rejected the argument that the grounds of detention were vague merely because the petitioner's alleged activities had not been supported by direct evidence. It observed that OGWs generally operate covertly to avoid detection by security forces, making direct evidence of their activities difficult to obtain. In such circumstances, intelligence reports often constitute the primary material regarding their alleged conduct.

“Once the sponsoring agency and the detaining authority have named the particular terrorist to whom the petitioner was providing logistic support, it cannot be said that the petitioner has been detained on vague grounds,” the Court held.

The Court further clarified that while examining the legality of a preventive detention order, it does not exercise appellate jurisdiction or substitute its own assessment for the subjective satisfaction of the detaining authority, particularly where the authority has considered the relevant circumstances.

In this regard, it relied upon the Supreme Court's decision in Union of India v. Arvind Shergill, (2000) 7 SCC 601, which cautions courts against examining preventive detention matters as though they were sitting in appeal over the satisfaction recorded by the detaining authority.

“The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view,” the Court observed, quoting the Supreme Court.

The High Court also examined the petitioner's contention that he had not been supplied the relevant material necessary to make an effective representation. It found from the detention record that the detention order, grounds of detention and other documents comprising nine leaves had been provided to him. The petitioner had acknowledged receipt of the documents by signing the execution report.

The Court further noted that the petitioner's representation had been considered and rejected by the detaining authority. A subsequent representation before the Government had also been rejected. The detention had been referred to the Advisory Board, which, through its report dated May 27, 2025, had opined in favour of the detention. The Government thereafter confirmed the detention by an order dated June 6, 2025.

Finding that the detention order was founded on relevant material and that the petitioner's grounds of challenge were without merit, the High Court declined to interfere with the preventive detention. Accordingly, the Court dismissed the habeas corpus petition.