“Preventive Detention Seriously Vitiated From Inception; Punitive In Its Intent And Effect”: Jammu & Kashmir & Ladakh High Court Quashes Preventive Detention Under PSA

A Single Bench of Justice Rahul Bharti observed, “The preventive detention of the petitioner as impugned in the writ petition is seriously misconceived, unwarranted and illegal on all fours.”

The Court added, “Least this Court can observe on this aspect of the case is that the respondent No. 3 – Sr. Superintendent of Police (SSP), Kathua was in fact abusing the position of being the author of the dossier against the petitioner and was acting out of malice in law if not malice in fact.”

Advocate Ajay Gandotra appeared for the Petitioner, while Government Advocate Suneel Malhotra represented the Respondents.

Brief Facts

The Petitioner was detained by an order passed by the District Magistrate under Section 8 of the Jammu & Kashmir Public Safety Act, 1978. The order was based on a police dossier and was subsequently approved and extended by the competent authority.

The detention order relied on three criminal cases, two had already ended in acquittal, and the third was stayed by the High Court in 2022 and was still pending trial. The order also referred to a claimed earlier preventive detention from 2001, though no material was produced to prove its existence.

The Petitioner challenged the detention order on the ground that the delay of four months between the dossier and the detention order destroyed the element of urgency, and that the detaining authority relied on irrelevant and stale material without application of mind.

Reasoning of the Court

The Court noted the four-month delay between the dossier and the detention order, and held that the delay was unexplained either in the order or in the State’s response, and that it undermined the very basis of preventive detention. The Court observed, “If that was such a pressing concern of the respondent No. 3 – Sr. Superintendent of Police (SSP), Kathua, for the preventive detention of the petitioner to be carried out through a detention order by the respondent No. 2 – District Magistrate, Kathua, then why a period of four months was let go by the respondent No. 2 – District Magistrate, Kathua without bothering to act upon the said dossier.”

The Court referred to the decision of the Supreme Court in Sushant Kumar Manik v. State of Tripura (2022) where it had been held that it is imperative that the detaining authority as well as the Government should remain vigilant but should not turn a blind eye to the derelictions committed by their subordinates because any indifferent attitude in that behalf would defeat the very purpose of preventive detention.

On the substance of the dossier, the Court found that the detaining authority had relied on prior criminal cases that had concluded in acquittals and failed to evaluate whether there existed any real-time threat to public order. It noted, “The respondent No. 3… was in fact referring to feigned narrative rather than actual situation… and was acting out of malice in law if not malice in fact.”

The Court observed, “An acquittal in a criminal case earned by an accused after undergoing a criminal trial tantamount to removal of taint against the accused of being the doer of crime in the context of said criminal case…An acquittal is not merely an outcome, but an affirmation that the accused is not guilty and cleanses him of any criminal antecedent by relation to the criminal case.”

Regarding the third case, which was pending but stayed, the Court noted, “The petitioner’s involvement in a pending criminal case which by no stretch of imagination can be held to be a ground for reckoning the petitioner’s personal liberty prejudicial to maintenance of public order.”

The Court also dismissed the reference to an alleged earlier preventive detention in 2001, holding, “The reference of the respondent No. 2 – District Magistrate, Kathua, to an earlier preventive detention… without even an iota of fact on the record to show that such a preventive detention custody… had actually taken place… shows that even the respondent No. 2… fell in same state of error by making a passing reference.

The Court held, “The preventive detention of the petitioner… is seriously vitiated from its very inception and in fact is nothing but punitive in its intent and effect.”

Consequently, the Court quashed the detention order, the approval order, and the extension order, and directed the immediate release of the Petitioner from preventive custody.

Cause Title: Mohd. Abass v. Union Territory of Jammu & Kashmir & Ors. (Neutral Citation: 2025:JKLHC-JMU:1469)