Jammu And Kashmir High Court Quashes Preventive Detention As Procedurally Flawed | Says Liberty Of A Citizen Is A ‘Handle With Care And Caution’ Tag | Orders Immediate Release
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rahul Bharti held that the preventive detention of the petitioner was vitiated by serious procedural lapses. The Court quashed the detention order passed under the Jammu & Kashmir Public Safety Act, 1978, along with all subsequent confirmation and extension orders. It directed that the petitioner be released from custody forthwith, holding the detention illegal on account of the detaining authorities' failure to adhere to constitutional and statutory safeguards.
The petitioner, a 71-year-old practising advocate, was detained pursuant to an order issued on 16 July 2024 by the District Magistrate, Srinagar, under Section 8 of the Jammu & Kashmir Public Safety Act, 1978. The detention order was based on a dossier submitted by the Senior Superintendent of Police, Srinagar, which alleged that the petitioner’s actions were prejudicial to the security of the State.
The detention was executed on 17 July 2024 by a Sub-Inspector from Police Station Sadar, Srinagar. The petitioner was taken to District Jail, Kathua, and served with the grounds of detention, along with a communication informing him of his right to make a representation to the detaining authority and the Government.
The SSP’s dossier described the petitioner as a General Secretary of the Kashmir High Court Bar Association, associating him with secessionist ideologies and alleged support for terrorism. It included accusations ranging from public agitation following the abrogation of Article 370 to prior participation in anti-national events. Notably, the dossier referred to the petitioner’s 2002 visit to Pakistan and his purported allegiance to cross-border directives.
The Government of Jammu & Kashmir, through the Home Department, approved the detention order on 22 July 2024 and fixed an initial detention period of six months, subject to the Advisory Board's opinion. The petitioner’s representations dated 24 July 2024, addressed to the District Magistrate, the Home Department, and the Advisory Board, were submitted through his wife. He also made a handwritten request on 1 August 2024 for a personal hearing before the Advisory Board, forwarded via the Superintendent of District Jail, Kathua.
The Advisory Board submitted its opinion on 5 August 2024, endorsing the detention and rejecting the representation without referring to any request for a personal hearing. Following this, the Government confirmed the detention for six months through its order dated 8 August 2024. Despite further correspondence involving various state functionaries, no intimation regarding the rejection of the representation was communicated to the petitioner.
The petitioner challenged the detention by filing a writ petition through his counsel on 12 August 2024. The petition raised several grounds, including the non-consideration of the prior quashing of a similar detention order issued in 2019, the denial of a personal hearing, and the non-supply of the dossier and related material.
In response, the State submitted that the detention was legally valid and all procedural safeguards had been observed. The authorities contended that the grounds of detention were served and explained, and that a single surviving ground could suffice to uphold the detention.
However, the petitioner argued that the dossier used for the 2024 detention order recycled the same grounds as the 2019 order, which had already been quashed by the High Court. He further submitted that the suppression of this fact and failure to communicate the rejection of his representation invalidated the detention.
The Court recorded: “The preventive detention of the petitioner is found to be seriously faulty and flawed.” It observed a significant procedural failure, stating: “The first and foremost flaw is the stone like silence on the part of the Senior Superintendent of Police (SSP), Srinagar and also of the respondent No.2-District Magistrate, Srinagar in putting out in full with respect to the petitioner’s preventive detention effected in the year 2019.”
Referring to the 2019 judgment, the Court stated: “The petitioner had earned quashment of his first preventive detention custody through the medium of a writ petition WP (Crl) No. 573/2019 in which the Senior Superintendent of Police (SSP), Srinagar and the District Magistrate, Srinagar figured as respondents No. 4 and 5.”
The Court found the omission of this fact in the dossier unacceptable: “This omission is too serious to be taken casually much less by this Court as being the guardian of the fundamental rights of a citizen of India which the petitioner undoubtedly is.”
Further, addressing the denial of the petitioner's request for a personal hearing, the Court recorded: “There is nothing said or suggested in the counter affidavit by the respondent No.2-District Magistrate, Srinagar as to why the petitioner’s plea for seeking personal hearing before the Advisory Board was made to suffer waste in the process of official correspondence.”
Regarding the petitioner’s representations, the Court found: “The petitioner being kept uninformed about the fate of his written representation which was made not only to the Advisory Board but also to the respondent No.2-District Magistrate, Srinagar and to the Principal Secretary to Government, Home Department, Union Territory of Jammu & Kashmir.”
The Court also relied on principles laid down in earlier rulings, observing: “Personal liberty protected under Article 21 of the Constitution is held so sacrosanct and so high in the scale of constitutional values that this Court has shown great anxiety for its protection.”
It concluded: “These two grounds are self-sufficient by themselves to render the preventive detention of the petitioner bad in the eyes of law.”
The Court held that the preventive detention custody of the petitioner, being based upon procedural pitfalls, was illegal and liable to be quashed.
It quashed the preventive detention order No. DMS/PSA/18/2024 dated 16th of July, 2024, passed by the respondent No.2-District Magistrate, Srinagar, along with the confirmation, approval, and extension orders related to the detention.
It directed that the petitioner be restored, without loss of any time, to his personal liberty by his immediate release from the concerned jail, and instructed the Superintendent of the concerned jail to act in compliance with the directions issued for the petitioner’s release from preventive detention custody.
Advocates Representing the Parties
For the Petitioners: Mr. R. A. Jan, Senior Advocate; Mr. Adil Mushtaq, Advocate; Mr. Z. A. Qurashi, Senior Advocate; Ms. Rehana Fayaz, Advocate; Mr. Mohammad Younis, Advocate
For the Respondents: Mr. Jehangir Ahmad Dar, Government Advocate
Case Title: Mohammad Ashraf Bhat v. Union Territory of J&K and Ors.
Case Number: HCP No. 282/2024
Bench: Justice Rahul Bharti
[Read/Download order]
