Jammu and Kashmir High Court: In a writ petition filed by petitioner, a local journalist, through his father, challenging the preventive detention on the ground of alleged mala fide intentions by the police and violation of Articles 21 and 22 of the Constitution of India, a single-judge bench of Rahul Bharti, J., held that the detention order violated the petitioner’s fundamental rights under Articles 21 and 22, quashed the detention order and directed immediate release of the petitioner
In the instant matter, the petitioner, a local journalist, was placed under preventive detention on 10-03-2024 following an order from the District Magistrate, Poonch, based on a dossier from the SSP, Poonch. The dossier included seven FIRs ranging from 2001 to 2023, accusing the petitioner of anti-social and criminal activities, which were said to pose a threat to public order.
The petitioner contended that the detention is baseless, mala fide and is based on personal vendetta by the police. The petitioner stated that out of the seven FIRs cited in the dossier, the petitioner was acquitted in five, with only two cases pending trial. The petitioner argued that the police deliberately omitted these acquittals in their dossier to portray him as a persistent criminal.
However, the police argued that the petitioner’s repeated criminal activities warranted his detention to maintain public order, as his previous offenses had caused fear and unrest in the district. It was contended that the dossier was submitted to the District Magistrate, who passed the detention order under the Jammu & Kashmir Public Safety Act, 1978, citing the petitioner’s threat to public safety.
The Court emphasised on the fundamental right to life and liberty under Article 21 and observed that personal liberty cannot be taken lightly and preventive detention powers should be exercised sparingly. The Court cited Mallada K. Sri Ram v. State of Telangana, 2022 SCC OnLine SC 424, where the Supreme Court reinforced that preventive detention should not be used arbitrarily, especially when ordinary criminal proceedings could address the alleged offenses.
The Court found that the SSP Poonch had acted with mala fide intent by failing to disclose the petitioner’s acquittals in five of the FIRs. The Court noted that the petitioner’s alleged activities did not pose a significant threat to public order, especially since the most recent FIR from 2023 did not justify preventive detention.
The Court criticised the conduct of the District Magistrate for blindly relying on the dossier without independently verifying the police’s claims, particularly concerning old and distant FIRs. The Court held that the preventive detention order was a “sheer abuse of jurisdiction of preventive detention” under the Jammu & Kashmir Public Safety Act, 1978 as it was based on stale and irrelevant FIRs, compounded by non-application of mind by the District Magistrate and mala fide intent by the SSP.
This Court further addressed the recurring misconception among authorities exercising preventive detention jurisdiction. The Court stated that these authorities often subject citizens to preventive detention on pretexts that do not fall within its scope, driven by a habitual casualness and disregard for constitutional safeguards and such actions mock the Constitution of India, which guarantees fundamental rights to life and personal liberty under Articles 21 and 22.
The Court quashed the preventive detention dated 09-03-2024 read with approval/ confirmation order/s passed by the Govt. of UT of Jammu & Kashmir with respect to preventive detention of the petitioner and held the preventive detention of the petitioner is illegal and directed his immediate release from illegal custody.
[Talib Hussain v. Union Territory of Jammu & Kashmir, 2024 SCC OnLine J&K 758, Decided on 17-09-2024]
Advocates who appeared in this case:
Mr. Tanzir Khatana and Mr. Tayyab Javed Qureshi, Counsel for the Petitioner
Mr. Pawan Dev Singh, Dy. AG, Counsel for the Respondents
