Independent Satisfaction and Direct Resort to Preventive Detention under the J&K Public Safety Act: Commentary on Waseem Ahmad Dar v. Government of J&K & Ors.

1. Introduction

This commentary examines the decision of the High Court of Jammu & Kashmir and Ladakh at Srinagar in HCP No. 73/2024, Waseem Ahmad Dar v. UT of J&K & Ors., decided on 05.12.2025 by Hon’ble Mr. Justice Sanjay Dhar.

The case concerns the preventive detention of the petitioner, Waseem Ahmad Dar @ “Leepa”, under the J&K Public Safety Act, 1978 (“PSA”), by order No. 02-DMK/PSA of 2024 dated 10.02.2024, issued by the District Magistrate, Kupwara. The detention was ordered to prevent the petitioner from allegedly indulging in activities prejudicial to the security of the State/Union Territory, primarily on the basis of:

• Complaints under Sections 107/151 of the Code of Criminal Procedure (CrPC), and
• Videos and content uploaded by the petitioner on his Facebook account, alleged to be anti-national, aimed at promoting terrorism and radicalizing youth.

The petitioner challenged the detention on multiple grounds – constitutional, statutory, and procedural – particularly invoking Article 22(5) of the Constitution and Section 13 of the PSA. During arguments, his counsel narrowed the focus to three principal issues:

1. Non-supply of all material forming the basis of detention, hampering effective representation.
2. Alleged non-application of mind by the District Magistrate, as the grounds of detention were said to be a mere replica of the police dossier.
3. Improper bypassing of ordinary criminal law and resorting directly to preventive detention.

The High Court dismissed the petition, upholding the detention order. The judgment is significant because it:

• Affirms that detailed supply of dossier, documents, and social media screenshots can satisfy constitutional/procedural safeguards.
• Clarifies that similarity between the police dossier and grounds of detention does not, by itself, prove non-application of mind, provided the detaining authority records an independent satisfaction.
• Accepts direct resort to preventive detention in a situation where no FIR has been registered and the apprehension is based on intelligence inputs, including social media activity.

These points bear on the evolving jurisprudence on preventive detention under the PSA, especially regarding online speech and prior use (or non-use) of “ordinary” criminal law.

2. Summary of the Judgment

2.1 Core Holding

The High Court upheld the preventive detention of the petitioner under Section 8 of the J&K Public Safety Act, 1978. It held that:

• The petitioner had been supplied with all the relevant material relied upon in the grounds of detention, including:
  • Detention order and warrant
  • Grounds of detention
  • Notice of detention
  • Letter to the Home Department
  • Police dossier
  • Other documents annexed to the dossier
  • Complaints under Sections 107/151 CrPC and orders of the Executive Magistrate
  • Urdu translations of the detention order and grounds
  • Screenshots of the petitioner’s Facebook posts/videos relied upon
• The detaining authority did not act mechanically or blindly follow the police dossier; it examined the material and recorded an independent subjective satisfaction that detention was necessary for security of the Union Territory.
• There was no legal bar on directly invoking preventive detention in this case, since no FIR had been registered, no prosecution was pending, and no question of cancelling bail arose. The authority could act on reports and social media material to prevent future prejudicial activities.

Consequently, the Court found no violation of Article 22(5) of the Constitution or Section 13 of the PSA and dismissed the habeas corpus petition.

2.2 Issues Decided

The Court addressed three principal legal questions:

1. Supply of material: Whether non-supply (alleged) of all documents/material forming the basis of detention vitiated the order by denying an effective opportunity to make a representation.
2. Non-application of mind: Whether similarity between the grounds of detention and the police dossier amounted to mechanical reproduction with no independent consideration by the District Magistrate.
3. Resort to preventive detention vs. normal criminal law: Whether the State was required first to proceed under normal criminal law (e.g., FIR, prosecution, bail, cancellation of bail) before invoking the PSA.

Each was answered against the petitioner.

3. Detailed Analysis

3.1 Procedural Safeguards: Supply of Material (Article 22(5) & Section 13 PSA)

3.1.1 Legal Framework

Article 22(5) of the Constitution mandates that:

“When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.”

Section 13 of the J&K PSA, 1978 substantially mirrors this requirement, adding that:

• The grounds must be communicated “as soon as may be” but ordinarily not later than five days.
• They must be communicated in a language understood by the detenue.

Judicially, this has come to mean not only that the “grounds” must be supplied but that the detenue must also receive sufficient “basic facts and materials” (such as copies of documents relied upon – complaints, orders, FIRs, and in modern times, digital content) so that he can make an effective, meaningful representation.

3.1.2 Application to the Present Case

The petitioner argued that:

• He was not supplied with all the material on which the detention was based.
• Consequently, he could not make an effective representation to challenge the detention.

The Court responded by closely examining the detention record produced by the respondents. It noted that the petitioner had been furnished with 23 leaves, comprising:

• Copy of detention warrant – 1 leaf
• Grounds of detention – 2 leaves
• Notice of detention – 1 leaf
• Letter to the Financial Commissioner, Home Department – 1 leaf
• Copy of the police dossier – 2 leaves
• Other relevant documents annexed with the dossier – 8 leaves
• Complaint under Sections 107/151 CrPC and order of Executive Magistrate 1st Class, Bandipora – 2 leaves
• Urdu translation of detention order/grounds of detention – 6 leaves

Importantly, in relation to the Facebook activity, the Court recorded that:

“...along with the copy of dossier, the detaining authority has provided the screenshots of the Facebook pages of the petitioner in support of their allegation that the petitioner has been uploading the contents with a view to promote terrorism and radicalize the youth.”

Further, the execution report bore the petitioner’s signatures, and there was a receipt executed by him acknowledging the supply of these documents. On this basis, the Court rejected the allegation of non-supply, holding:

• The contention of non-supply is “belied” by the detention record.
• All relevant material that formed the basis of the grounds was indeed furnished.

Thus, the Court concluded that the petitioner had not been handicapped in making a representation and that the requirement of Article 22(5) and Section 13 PSA was satisfied.

3.1.3 Commentary

The Court’s approach here reflects a record-based verification model: when the detenue disputes supply of material, the Court checks the contemporaneous detention file, including:

• Execution report
• Acknowledgment/receipt signed by the detenue
• List of documents served

If these are internally consistent and bear the detenue’s signatures, the Court is usually reluctant to accept a bare plea of non-supply. In effect, the system places strong evidentiary weight on the State’s documentation. The present judgment fits squarely into this pattern.

The distinctive aspect here is the recognition that screenshots of social media content (Facebook pages/posts) are part of the “material” that must be supplied to the detenue. By noting that such screenshots were supplied, the Court:

• Implicitly recognizes that digital/online content is treated on par with other documentary material.
• Confirms that where social media posts form the foundation of detention, they must be given to the detenue to enable a meaningful challenge.

In that sense, the judgment reinforces that the communication requirement under Article 22(5) extends to technology-era materials and not just to traditional paper-based documents.

3.2 Non-Application of Mind and the “Replica of Dossier” Argument

3.2.1 The Legal Concern

In preventive detention jurisprudence, a recurring ground of challenge is that the detaining authority has mechanically reproduced the police dossier and has not applied its own mind. This matters because:

• Under the PSA, the District Magistrate or detaining authority must form an independent subjective satisfaction regarding the necessity of detention.
• If it merely rubber-stamps the police recommendation, the detention is ultra vires.

Detenue often argue that if the grounds of detention are a near-verbatim or verbatim copy of the dossier, this indicates a lack of independent application of mind.

3.2.2 The Court’s Finding

The petitioner submitted that:

• The grounds of detention were a “replica” of the police dossier.
• This showed that the District Magistrate had not applied his own mind, making the order invalid.

The Court acknowledged that the detaining authority had “incorporated the facts narrated in the police dossier” as background. However, it drew a critical distinction:

“...after narrating the background facts, the detaining authority has clearly framed its opinion that the activities of the petitioner are highly prejudicial to the security of the Union Territory...”

The Court reasoned that:

• It is permissible for the detaining authority to rely on and narrate background facts from the dossier.
• What is crucial is that, based on those facts and the material annexed, the authority must form its own satisfaction that detention is necessary.
• In this case, such an independent opinion was clearly recorded.

Accordingly, the Court held:

“So, it is not a case where the detaining authority has mechanically copied the contents of the police dossier while formulating the grounds of detention... The contention of the petitioner that the detaining authority has acted in a mechanical manner is, therefore, misconceived.”

3.2.3 Commentary

The Court adopts a substance-over-form approach. Rather than comparing line-by-line for similarity, it focuses on whether:

• The District Magistrate has expressly articulated his satisfaction based on the material, and
• There is a discernible opinion that detention is necessary to prevent prejudicial activities.

This standard is relatively deferential to the detaining authority. It tolerates:

• Extensive use of the dossier’s language as long as the authority’s subjective satisfaction is expressly recorded.
• A fairly brief or formulaic articulation of “satisfaction” so long as it is identifiable.

In practical terms, this means that:

• Detention orders are unlikely to be quashed merely because the grounds resemble the dossier.
• Petitioners must demonstrate more – for instance, contradictions, omissions, or material non-consideration that point to genuine non-application of mind.

At the same time, this approach places a premium on including at least some independent reasoning in the grounds – however succinct – beyond mere reproduction of the dossier. The judgment implicitly signals that officers should ensure their orders:

• Identify the specific activities considered prejudicial.
• Use linking language such as “I am satisfied that...” or “it is imperative to detain...” to demonstrate independent assessment.

3.3 Preventive Detention versus “Ordinary” Criminal Law

3.3.1 The Petitioner’s Argument

The petitioner argued that:

• The State had not resorted to the “normal criminal law” – e.g., registering FIRs, prosecuting, and using bail provisions.
• Instead, it had directly resorted to preventive detention, which was alleged to be impermissible when ordinary law is adequate.

This line of challenge is rooted in a broader constitutional concern: preventive detention is an extraordinary measure and should not be used in place of regular criminal machinery where the latter is sufficient and appropriate.

3.3.2 The Court’s Reasoning

The Court framed and answered the issue as follows:

• It noted that:
  • No FIR had been lodged against the petitioner.
  • The petitioner was not on bail in any criminal case.
  • Thus, there was no question of applying for cancellation of bail.
• The apprehension of the detaining authority was based on:
  • Reports from various agencies, and
  • Facebook videos/photos/posts/chats uploaded by the petitioner, alleged to be anti-national and promoting terrorism.
• On the basis of this material, the authority formed the satisfaction that preventive detention was necessary to prevent him from engaging in activities prejudicial to security of the State/UT.

The Court concluded:

“There was no occasion for the respondents either to resort to normal criminal law or to seek cancellation of his bail. The contention of the petitioner in these circumstances is not tenable in law.”

3.3.3 Commentary

The Court’s stance is noteworthy and somewhat strong: it suggests that in a case where:

• No FIR is registered, and
• The preventive detention is grounded on intelligence reports and online content suggesting future danger,

there may be no obligation on the State to first try the ordinary criminal route.

This reasoning aligns with the classical understanding of preventive detention:

• It is forward-looking: concerned with preventing future acts.
• It can be triggered on the basis of suspicion, apprehension, and intelligence inputs, even before any cognizable offence is registered.
• Therefore, the absence of prior criminal proceedings is not necessarily fatal.

On the other hand, the judgment does not explicitly engage with the line of authority (from the Supreme Court) that cautions against using preventive detention as a substitute for ordinary law where the latter is fully capable of dealing with the alleged acts. Instead, the Court distinguishes the case factually (no FIR, no bail) and treats the intelligence-based apprehension as sufficient justification for direct use of the PSA.

From a rights perspective, this highlights a tension:

• On one side, there is a legitimate State interest in pre-empting threats to security, especially those that may arise quickly through online radicalisation and virtual networks.
• On the other side, the absence of any recourse to ordinary criminal processes can raise concerns about:
  • Lack of public scrutiny of evidence (no trial, no cross-examination).
  • Potential overreach, particularly where online speech is interpreted as “anti-national” or “promoting terrorism” without detailed judicial appraisal of content and intent.

In practice, the judgment strengthens the hands of detaining authorities in Jammu & Kashmir to:

• Invoke PSA based on digital content and intelligence inputs even in the absence of any FIR.
• Defend such detention on the footing that there was “no occasion” to use standard criminal law beforehand.

3.4 Social Media Activity as Ground for Preventive Detention

3.4.1 Factual Role of Facebook Content

The grounds of detention, as summarised by the Court, rely significantly on:

• “Videos uploaded by the petitioner on his Facebook”
• “Anti-national videos/photos/posts/chats...uploaded...with a view to promote terrorism and radicalize the youth”

The Court mentions that screenshots of the Facebook pages were annexed to the dossier and supplied to the detenue. However, it does not:

• Reproduce any of those posts or videos.
• Analyse the exact content of those posts.
• Engage in a free speech versus security analysis.

Instead, the Court accepts the characterisation of the content as “anti-national” and prejudicial without substantively interrogating its nature within the text of the judgment.

3.4.2 Legal Implications

The case points to an important and evolving trend: online expression, particularly on social media, can serve as primary material for preventive detention orders. This has several implications:

• Lower threshold of proof: Preventive detention ordinarily operates on “satisfaction” and apprehension, not on proof beyond reasonable doubt. When applied to online speech, this can bring a wide range of expression within the potential reach of detention, depending on how it is characterised by authorities.
• Digital evidence handling: As this judgment indicates, screenshots and other digital records must:
  • Be collected and placed on record.
  • Be supplied to the detenue for representation.
  This creates a nascent evidentiary practice around online material in preventive detention law.
• Freedom of expression concerns: While not addressed explicitly in this case, there is an inherent tension between:
  • The right to express political, religious, or ideological views (even controversial ones), and
  • The State’s characterization of certain content as “anti-national”, particularly in a conflict-sensitive region like J&K.

In future challenges, one may expect more detailed scrutiny of:

• What specific content was posted?
• Did it overtly advocate violence or terrorism, or merely express dissent or unpopular opinions?
• Is the leap from content to alleged security threat justified?

This judgment, however, proceeds on a deferential basis, accepting the State’s description of the material and focusing primarily on procedural compliance.

3.5 Precedential Context and Jurisprudential Alignment

Notably, the text of this judgment does not explicitly cite any earlier case-law or precedents. However, it operates within a settled jurisprudential framework on preventive detention, particularly:

• Strictness of procedural safeguards under Article 22(5).
• Requirement of independent subjective satisfaction by the detaining authority.
• The limited, but real, scope of judicial review over preventive detention orders.

In that sense, the judgment can be seen as:

• Reinforcing existing principles rather than creating absolutely novel doctrine, but
• Clarifying their application in the specific context of:
  • Digital/social media content, and
  • Detentions not preceded by FIRs or criminal proceedings.

From a broader doctrinal perspective (drawing on established Supreme Court jurisprudence, although not cited here):

• The insistence on supply of material aligns with earlier rulings that emphasize strict compliance with procedural requirements in preventive detention.
• The acceptance of dossier similarity so long as satisfaction is recorded is consistent with decisions that focus on the genuineness of the detaining authority’s subjective satisfaction, rather than formalistic differences in drafting.
• The Court’s willingness to uphold direct preventive detention without prior resort to ordinary criminal law sits at the permissive end of a spectrum of views, and may be contrasted with cases emphasizing that detention should not be used where the ordinary law is entirely adequate.

Although the judgment does not articulate this comparative jurisprudence, understanding it helps in appreciating where the decision sits within the larger Indian preventive detention framework.

4. Complex Concepts Simplified

For clarity, some key legal concepts in this judgment can be restated in simpler terms.

4.1 Preventive Detention vs. Punitive Detention

• Punitive detention:
  • Follows after a person is found guilty of an offence.
  • Based on past acts, proved in a criminal trial.
  • Imposed by a criminal court (e.g., imprisonment as sentence).
• Preventive detention:
  • Imposed to prevent a person from committing prejudicial acts in the future.
  • Based on suspicion or apprehension, not on a completed offence proved in trial.
  • Ordered by an executive authority (e.g., District Magistrate) under special law like PSA.

The PSA empowers authorities in J&K to detain persons whom they anticipate will act in a manner prejudicial to security of the State or public order.

4.2 Article 22(5) of the Constitution

Article 22(5) is a constitutional protection for those preventively detained. It basically requires:

1. The detaining authority must tell the detained person why they have been detained (“grounds of detention”).
2. This must be done as soon as possible.
3. The detenue must be given a real chance to argue against the detention (make a representation), which is only possible if he:
   • Understands the grounds (so language matters), and
   • Receives supporting material (documents, evidence, etc.) relied upon.

4.3 Section 13 of the J&K Public Safety Act

Section 13 implements Article 22(5) at the PSA level. It says, in essence:

• Grounds of detention should be communicated to the detenue as early as possible (normally within 5 days).
• Communication must be in a language understood by the detenue (hence translation into Urdu when needed).
• The purpose is to enable an effective representation against the detention order.

4.4 Sections 107 and 151 of the CrPC

• Section 107 CrPC: Allows an Executive Magistrate to require a person to execute a bond to keep the peace if there is information that he is likely to commit a breach of peace or disturb public tranquility.
• Section 151 CrPC: Allows a police officer to arrest a person without warrant if it appears that such arrest is necessary to prevent the commission of a cognizable offence.

In this case, complaints under Sections 107/151 CrPC against the petitioner had earlier been made, and the related documents formed part of the material supporting the PSA detention. However, no FIR or substantive criminal case was registered.

4.5 Dossier

A dossier in preventive detention parlance is a compilation prepared by the police or intelligence agencies setting out:

• Past incidents allegedly involving the proposed detenue.
• Current activities and behavioural pattern.
• Intelligence inputs and assessments.

This dossier is then placed before the detaining authority to assist in deciding whether a PSA detention order should be made. In this case, the dossier, along with annexures including screenshots of Facebook content, was the primary basis for the District Magistrate’s decision.

5. Impact and Future Implications

5.1 Strengthening Executive Discretion under the PSA

The judgment reinforces a broad discretionary space for detaining authorities in J&K:

• So long as the record shows supply of relevant documents and an acknowledgment by the detenue, procedural challenges on non-supply are likely to face an uphill task.
• Similarity between the police dossier and grounds of detention is not sufficient to show non-application of mind if the detaining authority formally records its independent satisfaction.
• Authorities can justify direct resort to preventive detention on the basis of intelligence and social media material even when no FIR has been registered.

5.2 Digital Era Preventive Detention

By upholding detention based significantly on Facebook posts/videos, the judgment implicitly endorses:

• Use of social media content as primary evidentiary material for detention.
• Requirement to supply such digital material (or screenshots) to the detenue as part of the grounds.

This indicates an evolving legal practice where online presence and speech can have direct consequences in the preventive detention context, especially in sensitive security environments.

5.3 Limited Judicial Scrutiny of Substantive Content

The Court’s examination focuses almost exclusively on:

• Procedural compliance (supply, explanation, language), and
• Existence of a recorded subjective satisfaction by the detaining authority.

It does not meaningfully examine:

• The nature and severity of the Facebook content.
• Whether the content clearly crosses from protected expression into direct incitement of terrorism or violence.
• Whether the use of PSA rather than ordinary law is proportionate in such circumstances.

As a result, the decision may be cited to support a relatively deferential approach to executive evaluation of online content in preventive detention matters.

6. Conclusion

The judgment in Waseem Ahmad Dar v. UT of J&K & Ors. stands as a clear affirmation of the following principles in the context of preventive detention under the J&K Public Safety Act:

1. Supply of Material: Where the detention record shows that the detenue has received the detention order, grounds, dossier, annexed documents, and translations in a language he understands – including screenshots of digital content – the requirement under Article 22(5) and Section 13 PSA is satisfied, and a bare plea of non-supply will not succeed.
2. Independent Satisfaction Despite Use of Dossier: The detaining authority may rely heavily on the police dossier and even adopt its narration of background facts; this does not amount to non-application of mind if the authority articulates its own subjective satisfaction that detention is necessary for security of the State/UT.
3. Direct Resort to Preventive Detention: The State need not invariably initiate ordinary criminal proceedings (FIR, prosecution, bail, etc.) before resorting to preventive detention. Where no FIR exists and the apprehension is grounded in intelligence and online material, direct use of PSA can be judicially sustained.
4. Social Media as a Basis for Detention: Digital and social media activity – here, alleged anti-national Facebook posts and videos – can constitute core material for preventive detention, provided it is documented and supplied to the detenue.

While the judgment does not significantly expand substantive protections for detenues, it clarifies and consolidates an executive-friendly application of established preventive detention principles in the contemporary context of online radicalisation. It thereby sets a reference point for future PSA cases involving social media content and underscores the need for detainees and their counsel to pay careful attention to the documentary record and to attack not just procedural form but the substantive basis of the detaining authority’s claimed “satisfaction”.