Safiya Malik

The High Court of Jammu & Kashmir and Ladakh, Single Bench of Justice Rahul Bharti, quashed the preventive detention of a 28-year-old man from Anantnag, holding it illegal from its very inception. The detention, ordered under the Jammu and Kashmir Public Safety Act, 1978, was based on a police dossier that merely referenced an FIR in which the detainee was neither named as an accused nor an undertrial. The Court found that the District Magistrate had exercised no independent application of mind, acting instead on the dictation of the police, and that the law had been invoked with a degree of non-seriousness falling below even the standard applied to a routine traffic violation. Allowing the habeas corpus petition, the Court directed the petitioner's immediate release.

The petitioner through his brother, challenged his preventive detention ordered by the District Magistrate, Anantnag under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The detention was based on a dossier submitted by the Senior Superintendent of Police, Anantnag, alleging that the petitioner’s activities were prejudicial to the security of the Union Territory of Jammu and Kashmir. The dossier referred to FIR No. 219/2022 registered at Police Station Anantnag under Sections 120-B, 130 IPC read with Sections 18 and 39 of the Unlawful Activities (Prevention) Act, 1967. It was stated that an accused in the said FIR had disclosed being in close contact with the petitioner for two years, following which the petitioner was questioned and released on a surety bond due to insufficient evidence.

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The District Magistrate issued a detention order directing that the petitioner be lodged in Central Jail, Kotbhalwal. The Government approved and later confirmed the detention after reference to the Advisory Board. The petitioner assailed the detention, and the respondents filed a counter affidavit relying on various Supreme Court decisions.

The Court recorded that “the preventive detention slapped upon the petitioner is literally on the dictation of the Senior Superintendent of Police (SSP), Anantnag, with the respondent No. 2-District Magistrate, Anantnag, at no point of time ever exercising or applying his own independent application of mind posing a bare ordinary reflection as to how came the petitioner, as a free citizen of India just by reference to FIR No. 219/2022 in which also he did not figure as an accused or an undertrial, be cited as a reference point for the purpose of justifying so called apprehension about unmentioned, unreferred and unstated alleged activities on the part of the petitioner perceived and assumed to be prejudicial to the security of the State.”

It further stated, “To put it simply, the petitioner has been subjected to preventive detention custody just by a blank reference on the part of the Senior Superintendent of Police (SSP), followed by equally bland application of mind on the part of the respondent No. 2-District Magistrate, Anantnag.”

The Court observed, “This Court has no hesitation in observing that the Jammu & Kashmir Public Safety Act, 1978, viz-a-viz the petitioner has been invoked by non-seriousness of standard with which even a motorist is not subjected to a routine traffic challan.”

On the legality of the detention, the Court recorded, “In view of the aforesaid, the preventive detention custody of the petitioner for whatsoever short remainder period the same is meant to be is held to be illegal right from its inception.”

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The Court declared that “the preventive detention custody of the petitioner for whatsoever short remainder period the same is meant to be is held to be illegal right from its inception The preventive detention order No. 10/DMA/ PSA/ DET/2024 dated 20.04.2024 passed by the respondent No. 2-District Magistrate, Anantnag, read with the consequent approval/confirmation order by the Government of Union Territory of J&K, is hereby quashed. The Senior Superintendent of the concerned Jail detaining the petitioner is directed to release the petitioner forthwith, if not required in any other case.”

Advocates Representing the Parties

For the Petitioners: Mr. Shabir Ahmad Dar, Advocate

Case Title: Shabir Ahmad Dar v. Union Territory of J&K & Ors.
Case Number: HCP No. 155/2024
Bench: Justice Rahul Bharti