Jammu and Kashmir and Ladakh High Court: While considering the instant petition wherein the petitioner challenged the order detaining him under Section 8(a) of the Jammu and Kashmir Public Safety Act, 1978, to prevent him from acting in any manner prejudicial to security, sovereignty and integrity of the State, the bench of Sanjeev Kumar, J*., quashed the impugned order of detention for being unsustainable in law. The Court pointed out that there was nothing on record, more particularly in the order of detention, that after the petitioner was released, he indulged in new activities till the passing of impugned order of detention. “There is not even a whisper about the prejudicial activities”. Therefore, the Court did not see any reason to press into service an FIR registered in the year 2004, more particularly when the petitioner has already faced trial in the aforesaid FIR and has been acquitted by the competent Court of jurisdiction.
The Court however noted that, “Interestingly, the Detaining Authority has not shown any awareness about the acquittal of the petitioner in the aforesaid FIR”.
Background
In an instant case, the order of detention was passed against the petitioner on 25-06-2022 by District Magistrate, Anantnag (‘The Detaining Authority’) under Section 8(a) of the Jammu and Kashmir Public Safety Act, 1978.
The petitioner contended that the entire detention order was based on the FIR registered against him in the year 2004 under Sections 307, 302 Ranbir Penal Code, 1989 (‘the RPC’) and Sections 7 and 25 Arms Act, 1959, the petitioner after facing trial was acquitted long back.
The respondent contested the writ petition and contented that all safeguards mentioned under Article
It was further submitted by the respondent that the petitioner had close contact with the proscribed terrorist organisation Hizbul Mujahideen, and he was also providing logistic support to them in terms of food, shelter and transportation.
The respondent further added that the petitioner was released and given an opportunity to reform and become a law-abiding citizen, but he failed to avail such opportunity and continued with such activities.
Analysis, Law and Decision
The Court quashed the impugned order of the detention as it was not sustainable in law and was primarily based on the allegations contained in the FIR filed against the petitioner in 2004.
The Court pointed out that earlier on the basis of same allegations as contained in 2004 FIR, a detention order was issued against the petitioner on 19-10-2021 apprehending that the petitioner could disturb Holy Shri Amarnath Ji Yatra. However, this order of detention was also quashed by the Court, since then petitioner was not engaged in any prejudicial activities.
The Court further opined that no person can be detained under preventive detention based on totally vague and unsubstantiated allegations. The Court relied on Suresh Mahato v. The District Magistrate, (1975) 3 SCC 554 wherein it was held that, “Mere apprehension of the Detaining Authority that too based on no material cannot be a ground for detaining a person under preventive custody.”
Hence, the writ petition was allowed, and the respondents were further directed to release the petitioner from preventive custody.
[Bashir Ahmad Koka v. Union Territory of Jammu and Kasmir, 2023 SCC OnLine J&K 1120, decided on 26-12-2023]
*Judgement by Justice Sanjeev Kumar
Advocates who appeared in this case:
For the petitioner : Asif Ali Dar, Advocate
For the respondents : Alla-ud-din Ganai, Additional Advocate General
