Srinagar: The High Court of Jammu & Kashmir and Ladakh has quashed the detention of Zahoor Ahmad Bhat, the brother of the slain separatist Maqbool Bhat, under the Public Safety Act (PSA). A resident of Mirpora in Trehgam village in north Kashmir's Kupwara district, Zahoor had been in custody since 2022 and was lodged in Karnal Jail, Haryana.
A bench headed by Justice Sanjay Dhar pronounced the judgement on December 27, 2024, in response to a petition by Zahoor, filed by his counsel, Advocate Bashir Ahmad Tak. The petition challenged the legality of the detention order dated June 28, 2022, issued by the District Magistrate of Kupwara. The counsel argued that the grounds for detention were vague, fabricated, and insufficient for a fair representation, violating constitutional safeguards.
Advocate Tak contended that the detention was a continuation of a previous PSA order from 2021, which had expired. He argued that the current order lacked fresh material to justify renewed detention and was based on recycled allegations. Tak also highlighted a significant six-month delay in executing the detention order, which, he asserted, undermined the urgency and necessity required for such preventive actions.
“The material forming the basis of the detention order was not shared with my client, and his representation against the detention was ignored,” Tak emphasised, adding that such actions violated constitutional guarantees.
The respondents, represented by Deputy Advocate General Syed Musaib, justified the detention by citing Zahoor’s alleged involvement in activities prejudicial to state security. They maintained that the detention met all statutory requirements and constitutional guarantees. However, they failed to explain the delay in executing the order, which was issued in June 2022 but executed only in January 2023.
In his judgement, Justice Dhar noted that the grounds for detention were nearly identical to those cited in the earlier PSA order, which had expired. Citing Supreme Court precedents, the judge ruled that a fresh detention order must be based on new facts. The court also criticised the unexplained delay in execution, stating that it cast doubt on the detaining authority's urgency and subjective satisfaction.
“...It is, therefore, 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. If such previous grounds of detention are taken into consideration while forming the subjective satisfaction of the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if further fresh facts disclosed in the grounds of the impugned detention order have been considered.”
The court further observed, “When there is an unsatisfactory and unexplained delay in executing the order of detention, such delay would throw considerable doubt on the genuineness of the subjective satisfaction recorded by the detaining authority. This would lead to a legitimate inference that the detaining authority was not genuinely satisfied regarding the necessity for detaining the detenue. The unexplained delay in the execution of the warrant of detention upon the petitioner renders the subjective satisfaction of the detaining authority doubtful. Consequently, the impugned order of detention has been rendered unsustainable in law."
The court quashed the detention order and directed Zahoor’s immediate release unless required in connection with any other case. “The impugned order of detention is quashed. A direction is issued to the respondents to release the detenue from preventive custody forthwith, provided he is not required in connection with any other case.”
Maqbool Bhat, the brother of Zahoor, was a co-founder of the Jammu Kashmir Liberation Front (JKLF). He was executed on February 11, 1984, in Tihar Jail, New Delhi, following his conviction for murder and other offences by a Sessions Court in Delhi. Both the Delhi High Court and the Supreme Court of India upheld his death sentence. His family never received his remains, as he was buried within the jail premises.
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