Illegal Custody Based Upon Procedural Pitfalls: Jammu & Kashmir & Ladakh High Court Quashes Preventive Detention Order Against Advocate

The Court remarked that the exercise of preventive detention jurisdiction is a “double-edged sword.” The Petitioner was taken into custody by an Order of the District Magistrate under the Jammu & Kashmir Public Safety Act, 1978 (the Act).

A Single Bench of Justice Rahul Bharti held, “The exercise of preventive detention jurisdiction is a double-edged sword which is unsparing both for the hand which wields it and the hand which bears its blow. If mishandled by the wielder of said sword, then the effect stays on the side of the wielder whereas the relief passes on to the side of the person aimed to suffer its blow, and which precisely is the situation in hand before this Court in the context of the present case.”

Senior Advocates RA Jan and ZA Qurashi appeared for the Petitioner, while Government Advocate Jehangir Ahmad Dar represented the Respondents.

Brief Facts

The detention was based on a dossier submitted by the Senior Superintendent of Police (SSP), alleging that the Petitioner’s activities were prejudicial to the security of the State. The dossier detailed the Petitioner’s alleged “secessionist ideology” and association with separatist organisations.

Court’s Observations

The High Court held, “Upon consideration of all facts and circumstances with respect to the case in hand drawn from the writ petition, the documents therewith, the counter affidavit without any documents therewith and the detention record produced, the preventive detention of the petitioner is found to be seriously faulty and flawed.”

“The first and foremost flaw is the stone like silence on the part of the Senior Superintendent of Police (SSP), Srinagar and also of the respondent No.2-District Magistrate, Srinagar in putting out in full with respect to the petitioner’s preventive detention effected in the year 2019…First preventive detention of the petitioner was quashed on merits. This Court is clueless to decipher as to why in his dossier, the Senior Superintendent of Police (SSP), Srinagar missed out in documenting in his dossier the details and dossier of the petitioner’s preventive detention effected in the year 2019 and its consequent quashment,” the Bench remarked.

The Court further noted, “Likewise, the respondent No.2-District Magistrate, Srinagar, if had acted with due diligence at his end, would have come across with a fact from the records of his office that the petitioner was subjected to preventive detention in the year 2019 which came to be set aside by the intervention of the High Court of Jammu & Kashmir and Ladakh. This omission is too serious to be taken casually much less by this Court as being the guardian of the fundamental rights of a citizen of India which the petitioner undoubtedly is.”

The Bench stated, “The preventive detention of the petitioner is further flawed because of the petitioner being kept uninformed about the fate of his written representation which was made not only to the Advisory Board but also to the respondent No.2-District Magistrate, Srinagar and to the Principal Secretary to Government, Home Department, Union Territory of Jammu & Kashmir. There is found no communication on the detention record file of the petitioner, as produced from the respondents’ end, to confirm that the petitioner was duly notified with respect to the rejection of his written representation against his preventive detention.”

Consequently, the Court ordered, “The preventive detention custody of the petitioner being based upon procedural pitfalls is, thus, held to be illegal and liable to be quashed.”

Accordingly, the High Court disposed of the Petition.

Cause Title: Mohammad Ashraf Bhat v. Union Territory of J&K & Ors. (HCP No.282/2024)

Appearance:

Petitioner: Senior Advocates R.A. Jan and Z.A. Qurashi; Advocates Adil Mushtaq, Rehana Fayaz and Mohammad Younis

Respondents: Government Advocate Jehangir Ahmad Dar

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