Fundamental Rights Seriously Trampled Upon With Impunity: J&K&L High Court Quashes Preventive Detention Order

The Jammu and Kashmir and Ladakh High Court quashed a preventive detention order passed by the District Magistrate of Udhampur.

The Court was dealing with a Habeas Corpus Petition filed by a man through his father, seeking for restoration of his lost liberty.

A Single Bench of Justice Rahul Bharti observed, “… this Court is of firm view that the fundamental right of the petitioner in terms of article 21 of the Constitution of India has been seriously trampled upon with impunity by the acts of omission and commission on the part of the District Magistrate, Udhampur, namely, Saloni Rai, IAS who is the author of the preventive detention order and also the corrigendum and subsequent order/s passed by the Government of UT of J&K operating at the same pedantic level as that of the District Magistrate, Udhampur.”

The Bench at the beginning of its judgment, mentioned a French proverb “A barbe de fol apprend-on a raire” meaning “On a fool’s beard the barber learns to shave”.

Advocate A.R. Khan appeared for the petitioner while Government Advocate Sumeet Bhatia appeared for the respondents.

Factual Background -

The petitioner, a 30-year-old man, through his father came forward with the habeas corpus petition pursuant to a preventive detention order passed by the District Magistrate (IAS Officer) purportedly acting under Section 8 of the Jammu & Kashmir Public Safety Act, 1978. As the impugned order was passed, the petitioner was detained and handed over to the Assistant Superintendent, District Jail, Jammu for getting locked up in jail custody.

It was submitted that, at the time of the execution of the detention order, the petitioner was handed over a copy of the detention order along with grounds of detention and also purportedly explained the import of the detention order and the grounds of detention in the language purportedly understood by the petitioner fully. However, the petitioner alleged that the District Magistrate acted in a casual and callous manner and hence, he sought liberty before the High Court.

The High Court in the above context of the case, noted, “A French proverb, “A barbe de fol apprend-on a raire” meaning “On a fool’s beard the barber learns to shave” is a most inviting introduction to the case in hand wherein at the precious cost of the petitioner’s fundamental right to personal liberty, the District Magistrate, Udhampur has first committed a faux pas and then concerted to cover up the same in a purported exercise of preventive detention jurisdiction in terms of J&K Public Safety Act, 1978 against the petitioner.”

The Court said that, once a detention order was approved and confirmed by the Government of UT of J&K through its Home Department, the District Magistrate ceased to have any further role and intervention being a functus officio in the matter for doing any, so to say, error correction work in the basic detention order to cover up her embarrassment and that instantly proved the point that the preventive detention order from its very inception was nothing but nullity in the eyes of law which ought not to have made the petitioner suffer loss of his personal liberty.

“Otherwise also, the facts and circumstances as reported in the dossier by the Senior Superintendent of Police (SSP), Udhampur against the petitioner following the purported basis for preventive detention of the petitioner, by no stretch of legal justification, constituted a basis for preventive detention of the petitioner and this is being observed by this court with the safety of reference to the judgment of Hon’ble the Supreme Court of India in “Mallada K Sri Ram Vs. The State of Telangana and others”, it added.

Furthermore, the Court observed that the judgment of the District Magistrate to act as a detention order making authority under the J&K Public Safety Act, 1978 is seriously suspect and that, it is for the Home Department, UT of Jammu & Kashmir to take a call to deprive the incumbent District Magistrate, Udhampur of her said jurisdiction to indulge in future exercising of the preventive detention jurisdiction under the J&K Public Safety Act, 1978 lest she would repeat the acts of omission or commission in some other form again thereby violating fundamental right of right to life and personal liberty of some other person to a serious damage.

“In the facts and circumstances of the case, this Court holds the preventive detention of the petitioner illegal right from inception and, accordingly, quashes preventive detention No. 01-PSA-2024 dated 02.01.2024 read with consequent corrigendum and order passed by the District Magistrate, Udhampur and consequent Government orders of approval and confirmation”, it also said.

The Court, therefore, directed that the petitioner be restored to his personal liberty with immediate effect by his release from the jail by the Superintendent District Jail, Jammu.

Accordingly, the High Court disposed of the petition.

Cause Title- Ashraf Ali @ Shiffu v. Union Territory of Jammu and Kashmir & Ors.

Click here to read/download the Judgment