"Replica of Police Dossier" and Breach of Article 22(5) Vitiate Detention: J& K High Court Quashes Preventive Custody for Failure to Apply Mind and Maintain Procedural Fairness
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh at Srinagar, Single Bench of Justice Mohd. Yousuf Wani, on 21 April 2025, quashed a preventive detention order passed under the Jammu and Kashmir Public Safety Act, 1978. The judgment pertained to a habeas corpus petition filed on behalf of a detenue, seeking relief against the detention order issued by the District Magistrate, Baramulla.
The Court observed that the detention order was vitiated due to non-application of mind by the detaining authority and lack of compliance with constitutional and statutory safeguards. The Bench noted that the grounds of detention were a replica of the police dossier, and held that the procedural requirements under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act were not fulfilled.
Citing multiple Supreme Court precedents, the Court stated that preventive detention laws must be construed strictly and used with extreme caution, as they curtail fundamental rights under Article 21. The Court concluded that the impugned order lacked proximity, justification, and lawful foundation, and thus directed the immediate release of the petitioner from preventive detention.
The habeas corpus petition was filed under Article 226 of the Constitution of India by Irshad Ahmad Dar through his father, challenging the detention order No. 47/DMB/PSA/2023 dated 21.07.2023 issued by the District Magistrate, Baramulla under Section 8(1)(a)(i) of the Jammu and Kashmir Public Safety Act, 1978. The order directed preventive detention of the petitioner to prevent him from acting in any manner prejudicial to the security of the state.
The petitioner contended that he and his father are Indian citizens domiciled in Jammu and Kashmir and that they have the legal right to approach the Court for redressal. It was submitted that the detention order and grounds were not provided to the detenue promptly, and that it was only through the family's efforts that the documents were obtained on 01.08.2023. Furthermore, it was argued that the detenue was already in police custody at the time of the order and had not filed for bail in the case bearing FIR No. 104/2023 under the Unlawful Activities Prevention Act (UAPA), indicating no imminent release.
The petition also noted that a similar detention order passed in 2019 against the same petitioner under No. 142/DMB/PSA/2019 had been quashed by the High Court. The current grounds of detention were alleged to be a repetition of the earlier order, lacking any fresh application of mind.
The counter affidavit filed by the detaining authority argued that the detention was lawful and that the constitutional and statutory safeguards had been complied with. The authority claimed the detenue was a "hard-core Over Ground Worker" (OGW) of Hizbul Mujahideen (HM), who provided logistical support to terrorists and instigated youth towards militancy. The detention was said to be based on FIRs No. 10/2019 of Police Station Bomai and 104/2023 of Police Station Sopore. It was further submitted that the detenue was informed of the grounds of detention upon arrest, and the detention was approved by the Government after review by the Advisory Board.
The petitioner's counsel reiterated the contention that the detention order lacked legal basis and was a verbatim copy of the police dossier. It was submitted that non-supply of documents violated Article 22(5) and prevented timely representation. The counsel further submitted that the new FIR was lodged while the petitioner was in custody and questioned its validity. It was also contended that after being granted bail in FIR No. 10/2019 on 04.07.2023, the petitioner was not released but kept under preventive detention through the impugned order.
The Court found that the impugned order bore striking similarity to the earlier quashed detention order of 30.03.2019, which had relied upon FIR No. 10/2019. The present detention order followed only two weeks after the petitioner was granted bail in that very FIR.
The Court stated, "The grounds of detention appear to be the replica of the police dossier which leads to an inference that the learned Detaining Authority has not applied its mind before passing the impugned order." It stated that preventive detention must be exercised with "great care and caution upon proper application of mind as the detenu under such circumstances has a limited defense."
Referring to precedent, the Court cited "Jahangirkhan, Fazalkhan Pathan vs. Police Commissioner Ahmedabad", and "Abdul Latif Abdul Wahab Sheikh vs. B.K. Jha", reiterating that detention based on previously quashed grounds vitiates the order. The judgment stated, "It is clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the Court."
The Court reiterated that procedural safeguards under Article 22(5) must be strictly observed. Quoting Rekha vs. State of Tamil Nadu, the judgment noted, "Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law... we must confine the power of preventive detention within very narrow limits."
The Court also referred to Francis Coralie Mullin v. Administrator, Union Territory of Delhi, to distinguish between preventive and punitive detention, stating the need for "reasonable, fair and just" procedures in depriving liberty.
Further, citing Shalini Soni vs. Union of India, the Court stated, "Communication of the grounds pre-supposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority." It added that the grounds must "reveal the whole of the factual material considered" and not merely conclusions.
The Court recorded, "The detaining authority appears to have followed the dossier of the police concerned in verbatim. There also appears to be no proximate or live link between the last case FIR bearing No. 104/2023 and the impugned detention order dated 21.07.2023."
It concluded, "Care should be taken that the liberty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law."
The Court allowed the petition and quashed the impugned detention order No. 47/DMB/PSA/2023 dated 21.07.2023.
It directed: "The detenu is directed to be released from his preventive detention under aforesaid order having been quashed."
Advocates Representing the Parties
For the Petitioner: Mr. B.A. Tak, Advocate
For the Respondents: Mr. Mubashir Majid Malik, Deputy Advocate General
Case Title: Irshad Ahmad Dar vs. UT of Jammu and Kashmir and Others
Case Number: HCP No. 17/2023
Bench: Justice Mohd. Yousuf Wani
[Read/Download order]
