While quashing a detention order, the Jammu & Kashmir and Ladakh High Court has held that incidents of personal enmity between the detenue and the complainant party are individualistic in nature and do not have the potential to disturb public order.

The petitioner approached the High Court challenging the detention order issued by the second respondent-District Magistrate, Poonch (detaining authority) whereby Mohd. Yousuf (detenue) was taken into preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.

The Single Bench of Justice Sanjay Dhar held, “A perusal of the particulars of the incidents, which form basis of the four FIRs registered against the petitioner, would reveal that these incidents are confined to personal enmity between the petitioner and the complainant party. These incidents are individualistic in nature. While the first incident is of the year 2018, the last one is of the year 2026. These activities of the petitioner affect private individuals. The repetition of similar acts by the petitioner would not, by itself, affect the flow of life of the community. Merely because the detenue has been charged with multiple offences cannot, in isolation, be taken as a basis for passing an order of detention, as these incidents are individualistic in nature and do not have the potential to disturb public order.”

Senior Advocate C.M.Koul represented the Petitioner while Deputy Advocate General Dewakar Sharma represented the Respondent.

Factual Background

The grounds of detention revolved around four FIRs registered for the offences under various Sections of the RPC, BNS and Arms Act. The petitioner claimed that the FIRs related to incidents pertaining to personal enmity between the petitioner and the complainant/injured, and these incidents did not have the potential to disturb “public order”.

Reasoning

Dealing with the law relating to preventive detention and the manner in which it has to be passed, the Bench explained that while considering the legality of an order of preventive detention, the Court can make an inquiry into the authority’s notion of its power, without being concerned about the sufficiency or otherwise of the material on the basis of which the detention order has been passed. “If, upon perusing the grounds of detention, it appears to the Court that the detaining authority has acted beyond its power, it would be open to the Court to interfere with the detention order. While testing the legality of the detention order, the Court has to see whether the requisite satisfaction has been arrived at by the detaining authority with some degree of rationality and prudence”, it added.

“While activities amounting to disturbance of “public order” give power to a detaining authority under the provisions of the J&K Public Safety Act to pass an order of preventive detention, the activities which merely pose a threat to “law and order” cannot form the basis for passing an order of preventive detention”, the Bench stated.

The Bench was of the view that if the offending acts relate to disturbance of flow of life of the community, it amounts to an act prejudicial to maintenance of public order, but if the offending acts are merely directed against an individual without disturbing the public order, it may be a case of disturbance of “law and order” warranting no action under the preventive detention laws.

Considering the incidents leading to the registration of the FIR, the Bench held that the activities of the petitioner affected private individuals and the repetition of similar acts by the petitioner did not by itself affect the flow of life of the community. Holding that the detaining authority, while passing the impugned order of detention, had failed to appreciate the difference between “public order” and “law and order”, the Bench mentioned, “The power of preventive detention, in the facts and circumstances of the present case, could not have been resorted to when ordinarily criminal law provides sufficient means to address the situation leading to passing of the impugned detention order.”

It was further noticed that the respondents had already applied for cancellation of bail of the petitioner, but without awaiting the conclusion of the said proceedings, the impugned order of detention was passed. This, according to the Bench, was indefensible. Thus, quashing the detention order, the Bench directed the release of the detenue.

Cause Title: Mohd. Yousuf v. Union Territory of Jammu and Kashmir (Neutral Citation: 2026:JKLHC-JMU:2959)

Appearance

Petitioner: Senior Advocate C.M.Koul, Advocate A.R.Bhat

Respondent: Dy.AG Dewakar Sharma

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Jammu & Kashmir & Ladakh High CourtJustice Sanjay Dhar

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.