Safiya Malik

The High Court of Jammu & Kashmir and Ladakh has set aside the preventive detention of a detainee held under the Jammu & Kashmir Public Safety Act, 1978. The court ruled that the detention was marred by legal infirmities and constituted a violation of the detainee’s fundamental rights. It directed the immediate release of the petitioner, who had been in custody at Central Jail Kot Bhalwal, Jammu, since September 6, 2024.

The petitioner, Tarun Bahl, aged 46, was detained under Order No. PSA-30 of 2024, issued on September 5, 2024, by the District Magistrate, Jammu. The detention was based on allegations that the petitioner had disseminated confidential information concerning security arrangements for high-profile individuals, bureaucrats, and politicians in Jammu & Kashmir.

The detention order was purportedly issued under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, following a dossier submitted by the Senior Superintendent of Police (SSP), Jammu. The authorities cited multiple First Information Reports (FIRs) against the petitioner, including:

• FIR No. 80/2024 (07.07.2024) – Registered at Police Station Channi Himmat, Jammu, under Sections 3/5 of the Official Secrets Act, 1923, and Sections 353/49 of the Bharatiya Nyaya Sanhita (BNS), 2023.

• FIR No. 48/2024 (08.07.2024) – Registered at Police Station Shergarhi, Srinagar, under Section 5(4) of the Official Secrets Act, 1923, Section 72 of the Information Technology Act, 2000, and Section 198 of BNS, 2023.

• FIR No. 143/2024 (22.07.2024) – Registered at Police Station Gandhi Nagar, Jammu, under Section 420 of the Indian Penal Code (IPC), concerning allegations of financial fraud amounting to ₹40 lakhs.

The petitioner had been granted bail in FIRs No. 80/2024 and No. 48/2024 by judicial authorities, but was subsequently arrested in connection with FIR No. 143/2024. After securing bail in that matter as well, he was placed under preventive detention on September 6, 2024.

The petitioner challenged his detention through a habeas corpus petition filed by his wife, arguing that the authorities had acted arbitrarily and in violation of procedural safeguards guaranteed under Article 21 and Article 22 of the Constitution of India.

The court, after examining the detention record, found that the preventive detention order was fundamentally flawed. Justice Rahul Bharti noted: "The case in hand is an exhibit of a preventive detention measure under the aegis of J&K Public Safety Act, 1978 being resorted to as a perverted detention by the District Police and District Executive Magistracy as an extra-legal expedience not only to curb fundamental right to personal liberty of the petitioner but also a stratagem to outmaneuver the constitutional and criminal courts’ indulgence in the matter of granting bail in favour of the petitioner."

The court noted that the District Magistrate had initially declined to issue a detention order when first approached by the SSP on August 31, 2023, citing insufficient grounds. However, the SSP submitted a "revised dossier" on September 5, 2024, including details of the petitioner’s multiple bank accounts and additional allegations. The court questioned how the same facts, previously deemed inadequate for detention, could suddenly justify the issuance of the order.

The judgment stated: "The respondents have literally resorted to dubious exercise of authority and jurisdiction at their respective end to pounce upon the personal liberty of the petitioner by subjecting him to preventive detention."

The court also took exception to the manner in which the petitioner’s multiple bail orders were systematically followed by fresh arrests, culminating in the issuance of the preventive detention order. It described the actions of the authorities as constituting a "witch-hunt."

"The petitioner was somehow being eyed upon to be a witch-hunt by the authorities and that is exhibited from the aforesaid sequence."

The court found that the petitioner had submitted multiple representations challenging his detention, which were rejected without proper communication to him. Citing Supreme Court precedents, the court stated that procedural compliance in preventive detention matters must be strictly observed.

Referring to Pramod Singla v. Union of India (2023), the court observed: "Preventive detention laws in India are a colonial legacy and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state must in all circumstances be critically examined, and must be used only in the rarest of rare cases."

Further, in reliance on Harish Pahwa v. State of Uttar Pradesh (1981) AIR SC 1126, the court noted: "It is the duty of the State to proceed to decide the detenue’s representation with utmost expedition... Default in doing the bare minimum renders a detention unconstitutional."

The court held that the failure to inform the petitioner of the rejection of his representation violated his fundamental rights under Article 22(5) of the Constitution of India.

The court quashed the detention order and directed the immediate release of the petitioner. The judgment stated:

"The cumulative effect of the aforesaid facts and circumstances of the case relating to the questioned preventive detention of the petitioner is that the preventive detention of the petitioner is held to be malice afflicted and illegal warranting immediate quashment and, accordingly, this Court sets aside the impugned preventive detention order No. PSA-30 of 2024 dated 05.09.2024 of the respondent No. 2 – District Magistrate, Jammu read with approval/confirmation order/s passed by the Home Department, Govt. of UT of J&K, and as consequence directs immediate release of the petitioner from the confines and custody of the Central Jail Kot Bhalwal, Jammu."

The Superintendent of Central Jail Kot Bhalwal was directed to ensure the release of the petitioner without any further restraint or confinement.

Case Title: Tarun Bahl v. Union Territory of J&K & Ors.
Case Number: HCP No. 138/2024
Bench: Justice Rahul Bharti

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