Detention Order Vitiated If Juvenility Of Detenue On Date Of Alleged Activities Is Not Considered: Jammu & Kashmir and Ladakh High Court
The Jammu & Kashmir and Ladakh High Court was considering a Petition seeking issuance of a writ of habeas corpus for quashing a Detention Order.
Justice M A Chowdhary, Jammu & Kashmir and Ladakh High Court
While calling a detention order a ‘mechanical reproduction of the Police dossier’, and directing the release of a detenue, the Jammu & Kashmir and Ladakh High Court has held that the failure to consider the juvenility of the detenue on the date of the alleged activities renders the order vitiated on account of non-application of mind.
The High Court was considering a Petition filed under Article 226 of the Constitution seeking issuance of a writ of habeas corpus for quashing a Detention Order passed by the District Magistrate whereby the detenue, stated to be a juvenile, was detained under the provisions of the Jammu & Kashmir Public Safety Act, 1978 (PSA).
The Single Bench of Justice M. A. Chowdhary held, “Applying the aforesaid principle, it is evident that the detention order in the present case is substantially founded upon FIR of year 2023 and allegations pertaining to the period when the detenue was a juvenile. A perusal of the detention order reveals no reference to the age of the petitioner, no consideration of applicability of the Juvenile Justice Act, but only mechanical reproduction of the Police dossier. The failure to consider a vital and relevant factor i.e., juvenility of the petitioner on the date of alleged activities, renders the order vitiated on account of non-application of mind. It is well settled that subjective satisfaction must be based on complete and relevant material, failing which the order cannot be sustained.”
Advocate Shaheryar represented the Petitioner, while Government Advocate Furqan Yaqub Sofi represented the Respondent.
Arguments
The detenue claimed that he was a juvenile on the date of the alleged activities as well as on the date of registration of the FIR, based on which the impugned detention order was passed. This, according to the petitioner, rendered the impugned order legally unsustainable.
Factual Background
The detenue came to be arrested in a case registered under Section 302 of the IPC and Sections 2,25 of the Arms Act, alleging involvement in anti-national/subversive activities. It was alleged that the petitioner was also found working as a potential OGW of killed terrorists and was earlier lodged in the Juvenile Home for a period of almost one year and three months but was subsequently released on bail. The detaining authority, in order to prevent him from indulging in the activities which were prejudicial to the security of the State, ordered to detain him, invoking the provisions of the J&K Public Safety Act, 1978.
Reasoning
The Bench noted that the grounds of detention indicated the age of the detainee as 18 years and 16 days as on the date of his detention under the Public Safety Act i.e., April 30, 2025. This, according to the Bench, meant that on the date of his alleged involvement in the case registered in the year 2023, he was of the age of 16 years or so, and thus was a juvenile on the day of the occurrence. It was further noticed that he was detained in a Juvenile Home and tried by a Juvenile Board.
“A child in conflict with law cannot be equated with an adult offender so as to justify preventive detention. The scheme of Juvenile Justice Act excludes the application of punitive or preventive detention mechanisms meant for adults. Preventive detention laws like Public Safety Act are exceptional in nature and must be strictly construed. Application of such law to a juvenile defeats the very object of juvenile justice jurisprudence”, it stated.
The Bench noted that the detention order in the present case was substantially founded upon the FIR of the year 2023, and the allegations pertained to the period when the detenue was a juvenile. As per the Bench, the detention order revealed no reference to the age of the petitioner and no consideration of applicability of the Juvenile Justice Act. The Bench also found that the grounds of detention did not specify the particular activities. It was further noticed that the detenue could have been dealt with under the Juvenile Justice framework; however, the Detaining Authority had shown no compelling necessity to bypass such a mechanism.
“The impugned detention order, thus, fails the test of reasonableness, legality, and proportionality”, the Bench held while allowing the petition and releasing the detenue from custody.
Cause Title: Fariz Gulzar v. Union Territory of J&K (Case No.: HCP No.239/2025)