Justice Moksha Khajuria Kazmi, Jammu & Kashmir & Ladakh High Court
Mere Possession Of Alleged Anti-National Literature Doesn’t Warrant Preventive Detention: Jammu & Kashmir and Ladakh High Court
|The Jammu & Kashmir and Ladakh High Court was considering a Petition challenging a detention order issued by the District Magistrate.
While quashing a detention order, the Jammu & Kashmir and Ladakh High Court has held that mere possession of books with dispiriting titles does not ipso facto make the detenue a criminal against whom preventive detention is required to be invoked.
The High Court was considering a Petition challenging a detention order issued by the District Magistrate, Kupwara, whereby the detenue was placed under preventive detention so as to prevent him from indulging in the activities detrimental to the security of the State.
The Single Bench of Justice Moksha Khajuria Kazmi stated, “It also needs to be emphasized here that the respondents have not shown any subversive activity against the name of petitioner/ detenue which compelled them to take recourse to preventive detention. The alleged anti-national literature shown to have been seized from the detenue has also presumably weighed with the respondents to brand the detenue as an anti-national, however, the said literature has wrongly been attributed to the detenue having been authored by him. The learned counsel for the petitioner is quite justified in submitting that the petitioner, being an academic scholar, is expected to be in possession of variety of literary means, therefore, a mere possession of the books with dispiriting titles does not ipso facto make the petitioner/ detenue a criminal against whom the preventive detention was required to be invoked.”
Advocate Zahid Hussain Dar represented the Petitioner while Government Advocate Faheem Nisar Shah represented the Respondent.
Arguments
It was the case of the appellant that there had been non application of mind on the part of the detaining authority as the said authority had acted mechanically while issuing the impugned order of detention by relying solely upon an FIR registered under sections 7,25 of the Arms Act, and Sections 13, 17, & 18, of the UAP Act in which the detenue was already bailed out by the competent authority.
The respondents submitted that the impugned detention order was passed after proper application of mind and none of the rights of the petitioner were violated.
Reasoning
On a perusal of the grounds of detention, the Bench noted that respondents had stated that the detenue was brought up in a family having separatist ideology and as such, the anti-India and separatist feelings got inculcated in the detenue since childhood. It was further mentioned therein that his father was an ex-militant affiliated with the terrorist organisation Al-Barq, who surrendered in the year 1990. The Bench found that, as per the grounds of detention, anti-national literature was seized from the possession of the petitioner.
Considering that the detaining authority did not appear to have made any effort to derive satisfaction as regards the prejudicial activity of the petitioner/ detenue warranting his preventive detention, the Bench found substance in the contention of the petitioner that there had been non-application of mind on the part of the detaining authority in detaining the detenue.
Taking note of the fact that in the grounds of detention it was mentioned that the detenue had inculcated a separatist ideology since his childhood and his father had been an ex-militant, the Bench stated that such assertion was delusory. “...the preventive detention, ordered so conveniently on such imaginary belief, is nothing but an unmindful exercise of power”, it added.
Thus, allowing the appeal, the Bench quashed the impugned detention order and ordered the detenue to be released from preventive custody.
Cause Title: Shafat Maqbool Wani v. UT of J&K and others (Case No.: HCP No. 312/2025)