SRINAGAR: The Jammu and Kashmir and Ladakh High Court has quashed the preventive detention of a Baramulla man under the Public Safety Act, observing that the detention order was founded on stale grounds and that the detaining authority failed to explain why ordinary criminal law was insufficient to deal with the allegations against him.
A bench of Justice Moksha Khajuria Kazmi allowed a habeas corpus petition filed by Mumtaza Akhter, sister of Tariq Ahmad War, 49, of Wailoo, Kralpora, Baramulla, and directed the authorities to release him forthwith.
The judgment was pronounced on September 3.
War had challenged detention order No. 19/DMB/PSA of 2024, dated April 12, 2024, issued by the District Magistrate, Baramulla, under which he was placed under preventive detention.
According to the petition, War had been detained on vague, irrelevant and non-existing grounds. His sister also alleged that he had not been furnished all the material relied upon by the detaining authority while passing the detention order.
It was further argued that the detaining authority had failed to independently arrive at the required subjective satisfaction, with the grounds of detention allegedly reproducing the dossier submitted by the concerned SSP. The petitioner also contended that the authority had failed to properly apply its mind before resorting to preventive detention.
A key challenge before the court concerned War’s alleged involvement in FIR No. 165/2015 registered at Police Station Pattan under Section 302 RPC and Sections 7/25 of the Arms Act. The petitioner argued that the case was being relied upon despite its age and that War had already been granted bail by the competent court.
The government opposed the petition, maintaining that War had been acting as an over-ground worker of Hizbul Mujahideen and had allegedly facilitated the transportation of militants. It also submitted that the constitutional safeguards had been complied with and that War’s representation against his detention had been considered and rejected.
The High Court, after examining the detention record, found that the respondents had not effectively controverted the grounds raised by War.
The court noted that the detention grounds repeatedly stated that War’s activities were prejudicial to the maintenance of peace, but failed to specify what those activities were.
The court also took note of the reference in the detention order to the 2024 Lok Sabha elections. The grounds stated that reports from field agencies indicated that War had allegedly been assigned an important role in carrying forward “illegal/anti-national activities” in view of the upcoming elections.
Justice Kazmi observed that while the authorities appeared to have taken preventive measures to ensure the smooth conduct of the elections, the Lok Sabha polls had since concluded and were “well over”.
The court found the reliance on the old criminal case equally problematic.
It observed that the detention order had been passed in 2024 while the FIR referred to by the authorities dated back to 2015—almost a decade earlier. The court held that this, by itself, suggested that the detention order was based on stale grounds, a practice already deprecated by the Supreme Court.
The High Court further noted that War had already been granted bail in the criminal case. Although the authorities had taken note of the bail order in the grounds of detention, they had not explained what compelled them to believe that the ordinary criminal law was inadequate to prevent any further alleged unlawful activity.
“This would unambiguously suggest that the detaining authority has not applied its own mind,” the court observed, holding that the lapse was sufficient to render the detention order unsustainable in law.
The court relied on a recent Supreme Court judgment in Joyi Kitty Joseph v Union of India, observing that where criminal prosecution and preventive detention arise from the same allegations, the detaining authority is required to consider the effect of the bail order and assess whether the conditions imposed by the criminal court were sufficient to prevent further similar activity.
The High Court said the authorities could not rely merely on “hollow assertions” and were required to establish circumstances indicating that the detenue had engaged in similar activities after being granted bail, along with a reasonable prognosis that such conduct was likely to be repeated.
It reiterated that the grounds of preventive detention must be proximate, pertinent and relevant, adding that the subjective satisfaction of the detaining authority, though ordinarily within its domain, is not immune from judicial review.
The court also referred to the Supreme Court’s judgment in Sushanta Kumar Banik v State of Tripura, noting the importance of placing relevant bail orders and circumstances before the detaining authority when deciding whether preventive detention is warranted.
There was another reason for the court to interfere with the detention order: its statutory life had already expired.
The court recorded that the order issued on April 12, 2024 was valid only until April 12, 2026, and had therefore already “outlived its life”.
In its final order, the High Court allowed the petition and quashed detention order No. 19/DMB/PSA of 2024 dated April 12, 2024, issued by the Deputy Commissioner, Baramulla, against Tariq Ahmad War.
The respondents were directed to release War forthwith. The detention record was ordered to be returned to the counsel for the respondents, and the petition was disposed of.
