Sanchayita Lahkar

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar dismissed a petition challenging a preventive detention order issued under the J&K Public Safety Act, 1978. The Court upheld the validity and legality of the impugned detention order issued by the District Magistrate of Bandipora, concluding that the petitioner failed to establish any merit in the grounds for challenge. It recorded that the procedural and substantive safeguards had been complied with, and the allegations against the detenue revealed a continued threat to the security of the Union Territory.

The Court held that the grounds of detention, despite reflecting linguistic similarities with the sponsoring agency's dossier, demonstrated the application of mind by the detaining authority. The representations filed by the petitioner were considered and disposed of by the competent authorities, and the petitioner was duly informed. Allegations of vagueness and non-supply of relevant material were also found to be unsupported by the record. Concluding that the impugned order did not warrant judicial interference, the petition was dismissed.

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The present case pertains to a habeas corpus petition filed against a preventive detention order issued by the District Magistrate, Bandipora, under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The detenue, Shaista Maqbool, was placed under preventive detention via order No. 19/DMB/PSA of 2023 dated 04.12.2023. The petitioner, through legal counsel, challenged the said order on various constitutional and statutory grounds.

According to the petition, the order was arbitrary and lacked application of mind. It was asserted that the grounds of detention were vague, cryptic, and based on stale incidents, thus lacking a live and proximate link to any recent unlawful activity. Further, it was alleged that the detention order was founded on fabricated allegations and that the procedural safeguards under the law were not adhered to.

The petitioner specifically contended that the grounds of detention were a mere reproduction of the dossier submitted by the police, indicating non-application of mind by the detaining authority. Additionally, the petitioner argued that she had not been supplied with all the documents forming the basis of the detention, thereby violating her right to make an effective representation against the order.

Another principal argument raised was that the representations submitted by the detenue to both the detaining authority and the Government had not been considered. This, according to the petitioner, constituted a violation of her constitutional rights under Article 22(5) of the Constitution of India, which mandates consideration of representation against detention.

In response, the respondents, represented through Government Advocate, opposed the petition and filed a counter affidavit asserting that the detenue was involved in activities prejudicial to the security of the State. It was contended that all statutory requirements and constitutional guarantees were fulfilled. The respondents maintained that the detenue was supplied with the entire detention material and was informed about her right to make a representation. The reply also stated that the representations made by the petitioner were duly considered and disposed of as per law.

The detention record, including execution reports, grounds of detention, warrant, notice of detention, and other supporting documents comprising 30 leaves, were placed before the Court to support the respondents' contentions.

The Court, after hearing arguments from both sides and perusing the record, proceeded to analyse the legal validity of the impugned detention order.

Justice Sanjay Dhar, in his judgment, addressed each of the grounds raised by the petitioner. On the issue of similarity between the grounds of detention and the dossier, the Court observed

"It does appear that there is some similarity in the words and expressions used in the grounds of detention and the dossier of detention but merely because there is similarity in the two documents does not necessarily lead to the conclusion that there has been non-application of mind on the part of the detaining authority."

The Court elaborated that each case must be evaluated based on its own facts and circumstances. It noted: "If it is shown from the perusal of the grounds of detention that the detaining authority has analysed the material on record and has applied its mind to draw its satisfaction about the detention of a detenu, the similarity in language of the grounds of detention and the dossier submitted by the sponsoring agency, may not be of much significance."

On the petitioner’s contention regarding non-consideration of representation, the Court stated: "The petitioner had made two representations, one before the detaining authority and other before the Government... the representation made before the detaining authority has been considered and rejected... intimation to this effect has been conveyed to the petitioner through her brother in terms of communication dated 30.01.2024."

Regarding the representation submitted to the Home Department, the Court noted: "The same, it seems, was placed before the Advisory Board and upon its consideration by the Board on 27.12.2023, the representation has been rejected. In fact, the record further shows that the petitioner has been given personal hearing by the Board before deciding her representation."

Addressing the argument of absence of a live link between the alleged activities and the detention, the Court quoted from the grounds of detention: "The detenue was in close contact with terrorist, namely, Musaib Lakhvi... a designated global terrorist. It is further stated... that the petitioner has developed contacts with various local and foreign terrorists who are at present operating in the UT of J&K... has been given pseudo names like Choti, Behan etc. by the terrorists."

The Court concluded: "It cannot be stated that the impugned detention order has been passed on the basis of past and stale incidents. There is a clear live and proximate link between the activities of the petitioner and the imperative need to detain her under the provisions of the J&K Public Safety Act."

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As for the claim of vagueness in the grounds of detention, the Court held: "There are clear and specific allegations made in the grounds of detention relating to activities of the petitioner. The names of the terrorists and anti-national elements with whom the petitioner is sharing information... are clearly indicated... Thus, it cannot be stated that the grounds of detention are vague in nature."

On the issue of non-supply of material, the Court referred to the execution report: "The petitioner has received material consisting of 30 leaves under receipt dated 06.12.2023. This material comprises copy of warrant, notice of detention, grounds of detention and other allied documents... she has been provided whole of the material forming basis of the grounds of detention."

"For the foregoing reasons, I do not find any ground to interfere with the impugned order of detention. The petition lacks merit and is dismissed accordingly."

The Court also directed: "The detention record be returned to the learned counsel for the respondents."

Advocates Representing the Parties:

For the Petitioners: Mr. Faheem Indrabi, Advocate

For the Respondents: Mr. Jehangir Ahmad Dar, Government Advocate

Case Title: Shaista Maqbool vs. UT of J&K & Anr.

Case Number: HCP No.171/2023

Bench: Justice Sanjay Dhar

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