Disclosure Would Have Been Against Public Interest; Detention Not a Mechanical Exercise: Jammu & Kashmir High Court Dismisses Habeas Corpus Plea Against Preventive Detention Under PSA
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar dismissed a habeas corpus petition challenging the preventive detention of a person under the Jammu and Kashmir Public Safety Act, 1978. The Court held that “grounds of detention clearly reflect application of mind on the part of the Detaining Authority” and concluded that no constitutional or statutory right of the petitioner had been violated. The Court directed that the detention record be returned to the counsel for the respondents.
The petitioner challenged Order No. 17/DMP/PSA of 2024 dated 26.07.2024 passed by the District Magistrate, Poonch, which placed him in preventive detention under the J&K Public Safety Act to prevent him from acting in a manner prejudicial to the security of the State. The petitioner argued that the detention order was passed in a mechanical manner, lacking proper application of mind, and violated constitutional and statutory safeguards.
The grounds raised by the petitioner included the assertion that the order was solely based on the police dossier and did not reflect independent application of mind by the Detaining Authority. He also alleged that he had not been informed of the time frame within which he could make a representation against the detention and that not all materials relied upon had been provided to him. The petitioner contended that the grounds of detention were vague, frivolous, and a replica of the police dossier.
In response, the respondents submitted that the detention order was legally valid and passed after observing all procedural safeguards. They contended that the petitioner had been involved in separatist and secessionist activities, working as an Over Ground Worker for Jaish-e-Mohammad (a banned organisation), and had facilitated terrorist movement in District Poonch. The petitioner was also alleged to have provided logistical support and shelter to terrorists, thereby posing a grave threat to public safety.
The respondents submitted that the Detaining Authority examined the police dossier submitted by the Senior Superintendent of Police, Poonch, applied its mind, and arrived at a subjective satisfaction based on the material. The record also showed that the relevant documents were read and explained to the petitioner in Urdu/Pahari languages, which he understands. The detention record was also submitted in support of these claims.
During the hearing, counsel for the petitioner restricted the challenge to two grounds: (1) that the entire material forming the basis of the detention was not furnished to the petitioner, and (2) that the grounds of detention were an exact reproduction of the police dossier, indicating non-application of mind.
On the first ground, the Court noted that the petitioner had been provided with the detention order (1 page), notice of detention (1 page), grounds of detention (3 pages), and dossier of detention (5 pages), as evidenced by the receipt signed by the petitioner. However, it was submitted by the petitioner’s counsel that the original dossier consisted of 6 pages, including an annexure (Annexure-1) prepared by the District Special Branch, which was not furnished to the petitioner.
The Court confirmed from the record that only five pages of the dossier had been provided and that Annexure-1, the special report from the District Special Branch containing intelligence inputs, had not been shared with the petitioner.
The issue then arose whether it was mandatory to supply the intelligence report to the detenue. The respondents argued that such disclosure would compromise public interest and was exempted under the statutory and constitutional framework.
On the second ground, the petitioner claimed that the grounds of detention were copied from the dossier, indicating a mechanical exercise of power. The Detaining Authority had, however, noted specific details, including the petitioner’s alleged coordination with Haq Nawaz, a wanted terrorist based in Saudi Arabia, and his activities on behalf of PAFF, a proxy outfit of Jaish-e-Mohammad.
The Court was called upon to determine whether the Detaining Authority had independently assessed the dossier and formed its own conclusion, or merely replicated police content without due consideration.
The Court examined the legal framework and judicial precedents on both issues. It stated in reference to the dossier and intelligence report:
“It is true that as per the record produced by the respondents, the petitioner has been furnished only five pages of dossier of detention and it appears that the annexure thereto has not been furnished to the petitioner.”
The Court noted that the annexure was an intelligence report by the District Special Branch. Referring to the Supreme Court’s decision in Wasi-ud-din Ahmed vs. D. M. Aligarh (1981) 4 SCC 521, it recorded:
“The District Magistrate was not bound to disclose the intelligence report and it was also not necessary for him to supply the history sheet, if any.”
Relying further on the Division Bench judgment in Mian Abdul Qayoom vs. U. T. of J&K and others 2020(4) JKJ(HC) 127, the Court stated:
“The detaining authority is not required to disclose those facts to a detenue, disclosure whereof it considers to be against the public interest.”
With respect to the applicable statutory provisions, the Court cited Section 13(2) of the J&K Public Safety Act and Article 22(6) of the Constitution of India, stating:
“The statutory provision contained in Sub Section (2) of Section 13 of the J&K Public Safety Act clearly vests power with the Detaining Authority to withhold the facts which it considers to be against the public interest to disclose.”
“Similarly clause(6) of the Article 22 of the Constitution also vests power with the Detaining Authority to withhold those facts from a detenue which it considers to be prejudicial to the public interest to disclose.”
The Court concluded on this issue:
“Merely because confidential information was not provided to the petitioner, which in the circumstances, would have been against the public interest, it cannot be stated that constitutional and statutory rights of the petitioner have been violated so as to entail quashment of the impugned order.”
Addressing the second contention, the Court observed:
“A perusal of grounds of detention and their comparison with the dossier of detention does not lead us to the conclusion that the grounds of detention are replica of the dossier.”
It further added:
“Merely because there is reproduction of the certain factual aspects narrated in the Police dossier in the grounds of detention does not necessarily prove non application of mind by the Detaining Authority.”
Regarding the Detaining Authority’s independent assessment, the Court stated:
“The Detaining Authority has noted that the petitioner is receiving instructions from wanted terrorist operative namely, Haq Nawaz, who is based in Saudi Arabia.”
“It has also been noted by the Detaining Authority that the petitioner is working for PAFF a frontal terror proxy outfit of Jaish-e-Mohammad and he has been assisting the said organization to carry out terror activities in District Poonch.”
“Upon noticing all these facts, the Detaining Authority has drawn its subjective satisfaction that in order to uphold the security interests of the UT of J&K and the Indian State, it is imperative to detain the petitioner.”
The Court distinguished the case law relied upon by the petitioner’s counsel and found it inapplicable. It concluded:
“Thus, it cannot be stated that there has been any mechanical exercise of power on the part of the Detaining Authority while passing the impugned order of detention.”
The Court found no merit in the habeas corpus petition and issued the following direction:
“For what has been discussed hereinabove, I do not find any merit in the present petition. Accordingly, the same is dismissed.”
Advocates Representing the Parties
For the Petitioners: Mr. K. M. Bhatti, Advocate
For the Respondents: Mr. Pawan Dev Singh, Deputy Advocate General
Case Title: Mumtaz Ahmed th. Nisar Ahmed v. Union Territory of J&K and others
Case Number: HCP No. 118/2024
Bench: Justice Sanjay Dhar
[Read/Download order]
