Jammu and Kashmir and Ladakh High Court: While considering the instant matter wherein the petitioner challenged his detention by District Magistrate Pulwama acting under Section 8 of the J&K Public Safety Act, 1978 and subsequently approved by the Govt. of UT of J&K, the Bench of Rahul Bharti, J.*, preventive detention of the petitioner is mala fide and illegal, ab origine and ab intra.
The Court pointed out that the petitioner had been made to suffer loss of his liberty for a cumulative period of more than 1080 days of preventive custody covered under the span of four detention orders in row from 2019 to March 2024. Therefore, the Court held that the petitioner is entitled to compensation of rupees 5 Lakhs payable by the respondents within a period of three months from the date of the judgment.
Background and Legal Trajectory: The petitioner is an advocate of the High Court of Jammu and Kashmir and also in the Sardar Court Srinagar. It was alleged that joined Jamti-e-Islami upon being influenced by the written literature of Ab. Qadi Awda of Egypt. It was alleged that the petitioner had been acting as legal advisor and press and publication chief of banned Jamati-e-Islami party. It was further alleged that the petitioner became a hard-core element propagating Islam in his own way to achieve ulterior motives including instigating the youth to carry out the activities which are said to be prejudicial to the integrity of the State and was able to manage joining of various innocent youth into militancy.
The petitioner’s first detention in March 2019 under J&K Public Security Act, 1978 was challenged before the High Court and was set aside in July 2019. However, instead of getting released from jail, the petitioner was slapped with another detention order within 6 days from the order of quashment of the first detention order.
The petitioner questioned the second detention, and it was set aside by the High Court in March 2020. After a lapse of just three months of quashment of second preventive detention order, the petitioner again came to be booked for preventive detention by an Order dated 29-06-2020. The third preventive detention was also set aside by the High Court in February 2021.
Then in 2022, once again the process for the preventive detention of the petitioner was set into effect by the SSP Pulwama by forwarding a dossier District Magistrate Pulwama citing the basis that if the petitioner was left to enjoyment of his fundamental right to personal liberty, then he would be indulging in activities prejudicial to the security of the State and therefore a preventive detention was warranted. District Magistrate Pulwama came to exhibit his subjective satisfaction, thereby passing a detention order 4th time in a row.
Court’s Assessment: Perusing the challenge to the 4th detention order, Court noted that the respondents did not file any challenge in letters patent appeal vis-à-vis quashment of the first 3 detention order. Therefore, it meant that the references and reasoning used by the writ court in all its three judgments held its ground.
The Court further noted that while pressing for detaining the petitioner for the fourth time, SSP and District Magistrate, Pulwama did not even consider what the High Court had pointed out while quashing the 3rd detention order in 2021. The High Court in 2021 held in very clear terms that the petitioner’s 3rd detention rested on stale grounds.
The Court strictly observed that if three previous judgments of the Court quashing preventive detention of the petitioner were not spared a passing glance and an application of mind, by the SSP Pulwama, the District Magistrate Pulwama and Govt. of UT of J&K, then how can it be claimed by the said three authorities that the 4th preventive detention of the petitioner is an outcome of an open and fair mindset acting upon changed factual scenario. “Suffice to say that preventive detention of the petitioner is afflicted surely with malice in law, if not malice in fact, at the end of the entire chain of the preventive detention proposing, making and confirming authorities”.
The Court further pointed out that the very fact that dossier by the SPP and the detention order by the District Magistrate are of same date, i.e.,14-09-2022 is a testament to the fact that preventive detention of the petitioner was an outcome of a pre-conceived mindset and that was to somehow keep chained the petitioner to jail bars even if without any conviction in a criminal case. “Thus, the petitioner was being fated to suffer preventive detention by his past, allegedly reckoned by the detention proposing and detention order making authorities, to be a recurring condemnation against the petitioner.”
Examining the grounds of the 4th detention order, the Court noted that respondents attempted to debunk the three judgments of the High Court whereby the preventive detention of the petitioner on all three occasions were quashed not on a technical ground but on the merits of the case holding the detention unjustified. “Upon scratching below the surface, there is nothing in the name of reasonableness and rationality to be found in the impugned grounds of detention and in the impugned order of the detention”.
The Court strictly noted that in continuing with the preventive detention of the petitioner, the SSP and District Magistrate are acting as law unto themselves having extra constitutional authority at their respective disposal in the matter of targeting the petitioner with repeated preventive detention custody, unmindful of fact that the orders are failing before the Court of law every time to sustain the said preventive detention custody.
Furthermore, the Court pointed out that the impugned preventive detention order is inherently bad as the purported basis of its passing is related to the security of state whereas the Jammu & Kashmir Public Safety Act, 1978 nowhere provides “Security of State” to be a basis under Section 8 of the 1978 Act as a ground for the Govt., and/or Divisional Commissioner/District Magistrate to inflict a preventive detention upon a person by reference to his alleged reported activities to be prejudicial to the Security of the State.
With the afore-stated assessment, the Court pointed out that Latest preventive detention of the petitioner is compounding the illegality attending the breach and violation of the petitioner’s fundamental right to personal liberty with impunity and that entitles him to compensation. Relying on Rudul Sah v. State of Bihar, (1983) 4 SCC 141, The Court found the instant case to be a fit case to exercise Court’s constitutional jurisdiction to extend constitutional remedy for grant of compensation in favour of the petitioner for illegal infringement of his fundamental right to personal liberty.
[Advocate Mohd. Ali Lone v. Govt. of J&K, 2024 SCC OnLine J&K 267, decided on 03-04-2024]
*Judgment by Justice Rahul Bharti
Advocates who appeared in this case :
For petitioner- ZA Qureshi, Sr Advocate with Advocate Rihana
For respondents- Zahid Qais Noor, GA
