Jammu And Kashmir High Court Upholds PSA Detention | Communal Harmony Threat Justified Action | Judicial Review Of Subjective Satisfaction Barred
Safiya Malik
The High Court of Jammu and Kashmir and Ladakh at Jammu, Single Bench of Justice Sanjay Dhar, dismissed a habeas corpus petition challenging a preventive detention order issued under the Jammu and Kashmir Public Safety Act, 1978.
The court upheld the detention on the grounds that the detenu's actions, including the alleged slaughter of a bovine animal, had incited public disorder and communal unrest, justifying preventive detention. The court concluded that all procedural and substantive safeguards had been satisfied by the detaining authority.
The petitioner, Sher Mohd, son of Habib Hajam, resident of Nagni Garh, Keshwan, and presently residing at Lower Pochhal, Tehsil and District Kishtwar, challenged detention order No. 2nd/DM/K/PSA of 2024 dated 27.07.2024 through his wife, Famida Begum. The order had been passed by Respondent No. 2, the District Magistrate of Kishtwar, under the Jammu and Kashmir Public Safety Act, 1978 to prevent the detenu from engaging in actions prejudicial to the maintenance of public order.
Represented by Advocate Asheesh Singh Kotwal, the petitioner alleged that the impugned order was issued without sufficient material or application of mind. He submitted that the detenu had been implicated in FIR No. 182/2024 under Sections 196/299 of the BNS (Bharatiya Nyaya Sanhita), and was granted bail by the Chief Judicial Magistrate, Kishtwar, on July 18, 2024. Despite this, the detaining authority passed the order of preventive detention without any compelling necessity.
It was further argued that the impugned order relied upon sixteen (16) daily diary reports from local police stations, yet copies of these reports were not supplied to the detenu, thereby denying him the opportunity to make an effective representation. The petitioner also contended that the representation made by the detenu against the detention was rejected by the respondents without assigning any reasons.
The respondents, represented by Government Advocate Bhanu Jasrotia, opposed the petition and defended the legality of the detention. It was asserted that the detenu had not desisted from his disruptive conduct even after being booked in FIR No. 182/2024. The respondents claimed that the slaughtering of a calf by the detenu had seriously affected communal harmony in District Kishtwar, triggering widespread protests and demonstrations across various police station jurisdictions.
They maintained that the detenu’s actions created hatred and religious discord, posing a grave threat to public order. To support this, they submitted the dossier and detention record, including the 16 daily diary reports and the FIR.
According to the respondents, the detention order, notice of detention, grounds of detention, and a 35-page dossier had been served on the detenu. While the dossier itself was only seven pages, it included the 16 daily diary reports and the FIR. This, they argued, demonstrated that the detenu had in fact received all the documents forming the basis of his detention.
The court examined the petition, responses, and the detention records in detail. Addressing the first contention regarding non-supply of material, the court recorded:
"A perusal of the dossier reveals that the details of the incidents which led to the registration of these (16) daily diary report are mentioned therein. The receipt relating to copy of the dossier by the detenu is not in dispute."
The court noted that the execution report confirmed receipt of the 35-page dossier by the detenu, which necessarily included the 16 daily diary reports and the FIR. Thus, it stated:
"It can, therefore, be safely inferred that the detenu has received not only copy of the dossier, but he has also received the copies of documents accompanying the dossier viz copy of the FIR and the copies of 16 daily diary reports."
Rejecting the claim of denial of effective representation, the court stated: "The gist of the incidents, as mentioned in the dossier of detention, is comprehensive enough to cover the essential aspects of the daily diary reports."
Addressing the argument that the detention was unnecessary due to an existing criminal case and grant of bail, the court stated: "The detaining authority has clearly indicated in the grounds of detention that, after grant of bail in favour of the detenu, several demonstrations and protests were held across District Kishtwar."
The court recorded that the disturbing impact on communal harmony and public order justified the preventive action: "This situation created a threat to public order, thereby compelling it to pass the impugned order of detention."
Further, on the issue of representation, the court recorded: "There is no requirement in law to furnish reasons regarding the decision of the competent authority with respect to rejection or acceptance of such representation."
Thus, the court found no procedural or substantive lapse in the detention process.
The Single Bench concluded: "For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed. The detention record be returned to the concerned forthwith."
Advocates Representing the Parties
For the Petitioner: Mr. Asheesh Singh Kotwal, Advocate
For the Respondents: Mr. Bhanu Jasrotia, Government Advocate
Case Title: Sher Mohd v. UT of J&K and others
Case Number: HCP No. 136/2024
Bench: Justice Sanjay Dhar
[Read/Download order]
