The Jammu & Kashmir and Ladakh High Court directed the release of the petitioner, who has been detained by the order of the respondent under Section 8 of the Jammu and Kashmir Public Safety Act, 1978.
While hearing the habeas corpus petition, the court noted that preventive detention cannot be sustained when important facts are suppressed from the detaining authority, and also a citizen’s liberty cannot be curtailed on the basis of incomplete exercise of power.
The said order was given by a single bench of Justice Rajesh Sekhri while allowing the petition filed by Rahul Gargotra who seek the quashing of detention order dated 06.09.2025 which has been passed by the respondent under the aforesaid section of Act, 1978.
During the hearing the court found that,
“Preventive detention is an exceptional power which authorizes curtailment of personal liberty without trial. Since such power directly affects the fundamental right guaranteed under Article 21 of the Constitution, the  constitutional safeguards embodied in Article 22(5) are required to be strictly complied with.“
According to the petition, he was illegally detained and lodged in District Jail Udhampur.
The counsel for the petitioner submitted that the FIR, which was registered at the police station in Janipur, was not disclosed to the detaining authority while forwarding the dossier and other relevant material.
In the said FIR, the petitioner was arrested on 28.08.2025 and remained in custody till the impugned order was passed.
It was further contended that he was granted bail in the aforementioned FIR on 06.09.2025 by the trial court.
In fact, in the counter-affidavit, which was filed by the respondents, it was incorrectly mentioned that the said bail order was related to the petitioner’s brother.
In the rejoinder affidavit, the petitioner has placed on record the subsequent order dated 06.10.2025 by which a typographical error was corrected and clarified that bail order dated 06.09.2025 was passed in favour of the petitioner.
It was further submitted by the petitioner that he was falsely implicated in several criminal cases because of previous rivalry and the criminal proceedings initiated against him only to settle personal scores.
In the instant petition, the impugned order was challenged on the ground that the petitioner’s representation dated 04.10.2025 was not considered by the respondent earliest.
His representation was decided on 07.11.2025, and the decision, which was taken by the respondent, was communicated to the petitioner on 13.11.2025.
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While on the other hand, the counsel for the respondent supported the impugned order and submitted that detaining authority has passed the order on the basis of the relevant material that was placed before the said authority.
Regarding the contention of the petitioner that relevant material was not placed before the detaining authority, the court cited the order which was passed by the Supreme court in Sarabjit Singh Mokha vs The District Magistrate Jabalpur, (2021) 20 SCC 98 and reteirated that,
“Suppression of material facts or failure to place relevant material before the detaining authority renders the detention order unsustainable as subjective satisfaction is then based upon incomplete facts.“
The court accepted the arguments of the petitioner and found that registration of the FIR and the custody of the petitioner were the relevant circumstances that were required to be placed before the detaining authority.
Regarding the illegal custody of the petitioner, the court relied on the decisions of Supreme Court in Rekha vs State of Tamilnadu; (2011) 5 SCC 244 and Kamarunnisha vs Union of India, (1991) 1 SCC 128.
The Court was of the view that in the detention record there is no consideration of FIR number 139 of 2025, custody of the petitioner, and also the bail order that was granted to him on 06.09.2025.
Besides this, the court clarified that the aforesaid circumstances had a direct effect on the subjective satisfaction that is required to be recorded by the detaining authority.
Further, in respect of the typographical error, the court emphasised that once the competent court corrected the said error, then the respondents could not rely upon the earlier typographical error in order to sustain the detention order.
Having regard to the facts of the case, the court found that under Article 225 of the Constitution of India, it is a duty of the state to consider representation of the detenue with utmost expedition.
In this regard the court relied on the decision of the Supreme Court in Jayanarayan Sukul vs. State of West Bengal; (1970) 1 SCC 219 and K.M. Abdulla Kunhi v. Union of India; (1991) 1 SCC 476.
The court found merit in the submission of the petitioner that the respondents did not furnish a satisfactory explanation in explaining the delay for deciding the representation.
The bench cautioned that “Mere disposal of the representation after delay would not satisfy the constitutional requirement.”
Accordingly, the court allowed the petition and quashed the impugned order.
Case: Rahil Gargotra vs UT of J&K & Ors.
Case No: HCP No. 165/2025
Date of Order: 16.07.2026
Status:Â Allowed
