SRINAGAR (Jammu and Kashmir): The Jammu and Kashmir and Ladakh High Court has quashed more than 150 Public Safety Act (PSA) cases with judges in majority of the cases observing that the "detaining authority had not applied its mind to draw subjective satisfaction to order prevention detention" of the detainee, despite the fact that there were many petitions pertaining to militancy in Jammu and Kashmir.
Here are the few noteworthy cases where the judges felt that the detainee's freedom was curtailed due to detaining authority's non-application of mind.
1. Sajad Ahmad Dar alias Sajad Gul
Case title: Sajad Ahmad Dar (through brother) vs Union Territory of Jammu & Kashmir (through Principal Secretary to Home Department,Civil Secretariat, Srinagar/ Jammu.), District Magistrate (Bandipora) and Station House Officer, Police Station, Hajin, (Bandipora)
Case number: WP (Crl) No. 09/2022
Judge(s): Chief Justice N. Kotiswar Singh and Justice M. A. Chowdhary
Bench: Srinagar
Pronouncement of Judgment: November 9, 2023
Why was he booked?
Dar (detenue), was detained by the District Magistrate, Bandipora, on January 14, 2022 vide Order No. 34/DNB/PSA/22. According to the District Magistrate's claim, Gul was booked under PSA after the DM said he was satisfied by the dossier placed before him by the Senior Superintendent of Police, Bandipora on January 11, 2022, that "there were sufficient grounds to prevent the detenue from acting in any manner which is prejudicial to the security of the State and that it was necessary to detain him under the provisions of the Act”.
While passing the impugned Order of detention, the detaining authority formulated the grounds of detention showing the detenue as a person of 29 years age, having qualification of Masters in Journalism and a professional Journalist (Media Reporter); that the detenue was a well-educated person, who “used social media as a tool to instigate people against Government establishments by making statements on social media which caused mischief and enmity; that the detenu had made/tweeted controversial statements and was less reporting about the welfare of the Union Territory, rather promoting enmity”.
The grounds of detention further reveal that three FIRs had been registered against the detenu at Police Station, Hajin, being FIR No. 12/2021 for the commission of offences punishable under Sections 147, 447, 336 and 353 of the Indian Penal Code (IPC); FIR No. 79/2021 for the commission of offences punishable under Sections 120-B, 153-B, 505 of the Indian Penal Code (IPC); and FIR No. 02/2022 for the commission of offences punishable under Sections 147, 148, 336, 307, 153-B of the Indian Penal Code (IPC).
What Court said?
The HC while quashing the PSA said that the afore-stated grounds of detention, as such, are general allegations against the detenu, with no specific instance/ incident. “The detention order based on such vague grounds is not sustainable, for the reason that the detaining authority, before passing the order, has not applied its mind to draw subjective satisfaction to order prevention detention of the detenu by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India,” the court said.
It said the impugned detention order in the Writ Petition for the reasons that the whole of the record/ documents, on which reliance was placed to detain the detenu, had not been supplied to him and that there are vague grounds of detention, with no right of making an effective and meaningful representation is not sustainable, for contravention of the statutory provision of the J&K Public Safety Act as well as constitutional guarantees provided under Article 22 (5) of the Constitution of India.
The court observed that the foregoing reasons and observations made hereinabove, this appeal is allowed and the impugned Judgment (December 1, 2022) passed by the learned Single Judge is set aside. “Resultantly, the Writ Petition filed by the Appellant, being WP (Crl) No.09/2022, is allowed and the impugned Order of detention bearing No. 25/DMB/PSA of 2021-22 passed by the Respondent-District Magistrate, Bandipora is quashed. The Respondents are directed to release the detenu, namely, Sajad Ahmad Dar, forthwith from the preventive custody, if not required in any other case,” it said.
2. Leaqat Ali
Case title: Leaqat Ali vs Union Territory of Jammu & Kashmir and others
Case number: WP(Crl) No. 82/2022
Judge(s): Justice Sindhu Sharma
Bench: Jammu
Pronouncement of Judgment: October 5, 2023
Why was he booked?
Leaqat Ali was detained vide order No. 32/PSA of 2022 on November 4, 2022 issued by the District Magistrate, Ramban. By virtue of the impugned detention order, the District Magistrate, Ramban, in exercise of powers under Section 8 of the J&K Public Safety Act, 1978, has placed the Liaqat Ali in preventive custody under the provisions of Public Safety Act to prevent him from acting in any manner prejudicial to the maintenance of public order.
What Court said?
The HC said that perusal of the detention record reveals that all the material relied upon by the Detaining Authority while passing the order of detention has not been provided to the detenu. The execution report reveals that respondents have provided order, relevant material and documents to the detenu. The receipt of grounds of detention reveals that the detenu has been provided only five leaves through, it appears that the detenu has not been provided dossier and other relevant material relied upon by the respondents while passing the detention order, it said.
It said that the detention of the detenu is based on the police dossier of SSP, Ramban and this dossier has not been provided to the detenu. The detenu must know what weighed with the Detaining Authority while passing the order of detention in order to make an effective representation, added the court. It said that in order to make an effective representation, the detenu must know the fact of what weighed in the mind of the Detaining Authority for passing the impugned order of detention.
Judgment: PSA quashed
In view of the aforesaid discussions and without adverting to the other grounds raised in this petition, the same is allowed. The impugned detention Order No. 32/PSA of 2022 passed by the District Magistrate, Ramban, is quashed. District Ramban has been directed to order Leaqat Ali be released from the custody forthwith provided he is not required in any other case.
Also read: J-K High Court issues notice to administration over house arrest of Mirwaiz Umar Farooq
3. Sehran Abass Sheikh
Case title: Sehran Abass Sheikh vs Union Territory of Jammu & Kashmir, District Magistrate (Jammu), Senior Superintendent of Police (Railways), Jammu, and Senior Superintendent of Police, Jammu.
Case number: WP(Crl) No. 92/2022
Judge(s): Justice M. A. Chowdhary
Bench: Jammu
Pronouncement of Judgment: September 29, 2023
Why was he booked?
District Magistrate, Jammu in exercise of powers under Section 8(1) (a) of the Jammu & Kashmir Public Safety Act, 1978, passed the detention Order No. 21 of 2022 on December 3, 2022, in terms whereof the detenue namely Sehran Nawaz Sheikh has been detained. The detenue was ordered to be detained for maintenance of ‘public order’ and had he been let free, there would have been every likelihood of his re-indulging in anti-national/criminal activities; that the power of preventive detention is different from punishment as the preventive detention is aimed at stopping the illegal activities of an individual, which, otherwise, under common law both criminal/civil cannot be stopped and the said individual creates a havoc in the society which leads to public disorder, disturbing peace, prosperity, tranquility, integrity and security of the UT of J&K; that the petitioner tried to create communal tension and usually remained busy in illegal activities.
It is being stated that the detenue is habitual of committing heinous crime and is a pawn in the hands of terror handlers operating from Pakistan in order to carry out the terror activities in Jammu which would ultimately lead to the disturbance of ‘Public Order’ and communal harmony.
What Court said?
It appears that the respondent-police by repeated invocation of detention order wish to ensure that the petitioner remains in custody even if his first detention quashed by this Court, the second was revoked by the Government itself and he was ordered to be detained third time by District Magistrate Jammu and without making any reference to the earlier detention orders and result thereof from which it is explicitly clear that either the concerned police had not brought it to the notice of the detaining authority or the detaining authority had not considered all the facts relating to the detenue, which indicates the non application of mind by District Magistrate Jammu, while passing the detention order.
Reproducing the dossier prepared by the Senior Superintendent of Police, Jammu in the order of detention, almost word by word; non furnishing of the whole of the material on which detention order was based; furnishing the material in English and not the language of the detenue; and not informing detenue of his right to make representation before the Detaining Authority within the statutory period, all reflect that the Detaining Authority has not applied its mind to draw the subjective satisfaction to detain the petitioner and detenue has also been deprived of his fundamental right to make effective and meaningful representation against the detention order to the Detaining Authority and the government.
Judgment: PSA quashed
For the foregoing reasons and the law discussed hereinabove, this petition is allowed. Impugned order of detention No. 21 of 2022, passed by the District Magistrate, Jammu is, as such, quashed. The detenue namely Sehran Nawaz Sheikh is ordered to be released from the preventive custody, forthwith, provided he is not required in connection with any other case(s).
4. Ghulam Nabi
Case title: Ghulam Nabi vs Union Territory of Jammu & others
Case number: WP(Crl) No.15/2023
Judge(s): Justice Tashi Rabstan and Justice Mohan Lal
Bench: Jammu
Pronouncement of Judgment: August 1, 2023
Why was he booked?
The detenue (Ghulam Nabi) was detained under detention order No.23/PAS of 2022 on October 3, 2022, issued by the District Magistrate, Ramban, in purported exercise of powers conferred by Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The District Magistrate, Ramban issued the detention order against the detenue, inter alia, alleging that the activities of the detenue are highly prejudicial to the maintenance of public order and these activities are posing serious threat to the public peace and tranquility as he is habitual of indulging in the act of smuggling of narcotic substances.
What Court said?
A bare perusal of the Execution Report would show that the following material was handed over to the detenue at Central Jail Jammu: the detention order (01 leaf), Notice of detention (01 leaf) grounds of detention (03 leaves), Dossier of detention (Nil), Copies of FIRs, Statements of Witnesses and other related relevant documents (Nil). Hence, the execution report itself makes it amply clear that the detenue was not provided with relevant material which prevented him to have an effective representation against the detention order. It is furthermore submitted that the grounds of detention are a replica of the dossier as such there is no application of mind by the detaining authority.
Judgment: PSA quashed
Impugned order of detention No. 23/PSA of 2022 passed by the District Magistrate, Ramban is, as such, quashed. The detenue namely Ghulam Nabi Gujjar is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).
5. Aadil Ahmad Sofi
Case title: Aadil Ahmad Sofi vs Union Territory of Jammu & others
Case number: WP(Crl) No. 686/2022
Judge(s): Justice M. A. Chowdhary
Bench: Srinagar
Pronouncement of Judgment: July 27, 2023
Why was he booked?
Sofi, in terms of the detention order No. 75/DMK/PSA/2022 on September 21, 2022 has been detained in the interest of security of the State by District Magistrate Kulgam in exercise of powers conferred on him under Clause (a) of Section 8 of the J&K Public Safety Act, 1978. The grounds of detention are precise, proximate, pertinent and relevant. There is no vagueness or staleness in the grounds coupled with definite indications as to the impact thereof, which has been precisely stated in the grounds of detention. Further it is contended that the grounds of detention give complete account of the activities of the detenue which are highly prejudicial for maintenance of security of the State, as such, there was no option left but to order detention of the detenue under Public Safety Ac
What Court said?
On perusal of the record it reveals that the detenue has not been furnished all the documents pursuant to the order impugned in terms of which he was taken into custody. He has not been provided copy of the communication of the sponsoring agency referred to in the impugned order which is stated to have been received from the said agency, on which the detaining authority has stemmed its subjective satisfaction. The detention order based on such vague and stale grounds is not sustainable, for the reason that the detaining authority before passing the order has not applied its mind to draw subjective satisfaction to order detention of the detenue by curtailing his liberty which is a valuable and cherishable right guaranteed under Article 21 of the Constitution of India.
Judgment: PSA quashed
On the touchstone of the law laid down above and the rival submissions, the order of detention, impugned in the instant petition, does not sustain on the aforesaid grounds. In the afore-stated backdrop, this petition is allowed. Order of detention No. 75/DMK/PSA/2022 passed by District Magistrate Kulgam is, as such, quashed. The detenue namely Aadil Ahmad Sofi is ordered to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).
