Justice Rahul Bharti Declares DM Kupwara’s PSA Order Illegal, Says Mechanical Exercise of Preventive Detention Powers Cannot Be Sustained
Srinagar, July 16: In a significant ruling reinforcing the constitutional protection of personal liberty, the High Court of Jammu & Kashmir and Ladakh has quashed a preventive detention order issued under the Jammu and Kashmir Public Safety Act (PSA), terming it a “sheer abuse of preventive detention jurisdiction” and directing the immediate release of the detenue.
Justice Rahul Bharti, while allowing a habeas corpus petition, held that the detention order issued by the District Magistrate, Kupwara, was illegal, arbitrary and a nullity in law, observing that it had been passed on the basis of non-existent and factually incorrect material.
The Court found that the only adverse material relied upon by the detaining authority was FIR No. 193/2010 registered at Police Station Handwara. However, the detenue had already been acquitted in the case by the Court of the Additional Sessions Judge, Handwara, through a judgment dated September 29, 2016.
Despite the acquittal nearly a decade earlier, the grounds of detention incorrectly described the detenue as an undertrial and alleged that his activities were prejudicial to the security of the State.
Taking serious note of the glaring discrepancy, the High Court had earlier sought an explanation from the District Magistrate, Kupwara, regarding how the detenue continued to be portrayed as an undertrial despite his acquittal by a competent criminal court.
Justice Bharti observed that the detention dossier appeared to have been prepared by the Senior Superintendent of Police, Handwara, in a “blindfold manner,” while the District Magistrate mechanically accepted the police dossier without independently verifying the factual record before invoking the extraordinary powers under the PSA.
The Court held that the acquittal judgment passed by the Sessions Court could not reasonably have escaped the notice of either the district police or the District Magistrate, making the preventive detention order legally unsustainable.
Observing that the detention was founded entirely on non-existent material, the High Court noted that the detenue had already spent more than one year in preventive custody and should not be subjected to any further illegal incarceration.
Accordingly, the Court directed the authorities to release the detenue forthwith, unless he was required in connection with any other criminal case.
In one of the strongest observations in the judgment, Justice Rahul Bharti remarked that the State escaped liability to pay compensation only because the detenue had not claimed such relief in the writ petition.
The Court observed that the case was fully fit for awarding compensation, as the detenue had suffered an “utterly misconceived preventive detention custody,” resulting in the loss of nearly one year of his precious personal liberty behind bars.
With these observations, the High Court restored the detenue’s liberty, quashed the preventive detention order and reaffirmed that preventive detention powers must be exercised with due application of mind and in strict conformity with law.
Advocate Syed Sajad Geelani represented the petitioner before the High Court. (KNC)
