The High Court of Jammu & Kashmir and Ladakh at Srinagar has declared a preventive detention order null and void, hold that its reliance on grounds that are no longer legally valid post the reorganization of Jammu & Kashmir into a Union Territory.

The Single-Judge Bench of Justice Rahul Bharti quashed the preventive detention order against Rayees Ahmad Khan following a Writ Petition filed by his wife, Farhat Begum, on May 2, 2023, seeking a writ of habeas corpus.

The Court noted, "In the present case, when the petitioner came to be read over the order of detention, the petitioner was made to understand that he was being detained in order to prevent him from acting in a manner prejudicial to the security of the State obviously meaning State of Jammu & Kashmir. State of Jammu & Kashmir has ceased to be an entity for the Govt. as well as for the citizens of the Union Territory of Jammu & Kashmir and it cannot lie at the disposal of any side to still say and understand that the State of Jammu & Kashmir is in existence for whose safety and security detention order under J&K Public Safety Act, 1978 can be passed."

The Court's ruling was grounded on the observation that using the term "security of the State" as a basis for preventive detention is no longer appropriate following the reorganization of the erstwhile state.

The Court's scrutiny revealed that the Jammu & Kashmir Public Safety Act, 1978, underwent amendments consequent to the enactment of the Jammu & Kashmir Reorganization Act, 2019, leading to the dissolution of the political entity of the State of Jammu & Kashmir and its transformation into two Union Territories. The amendment replaced "security of the State" with "security of the Union Territory of Jammu & Kashmir." Consequently, a preventive detention order issued under Section 8(1)(a)(i) must now be linked to activities prejudicial to the security of the Union Territory.

Emphasizing adherence to the letter of the law, the Court reiterated that the J&K Public Safety Act, 1978, embodies procedural safeguards designed to protect both society and potential detainees. It observed that the petitioner's detention, ostensibly to safeguard the security of the now-defunct State of Jammu & Kashmir, was untenable under the amended legal framework.

The Single-Judge Bench criticized the District Magistrate of Baramulla for the flawed application of outdated reasoning and highlighted the lack of scrutiny by the Advisory Board in confirming the detention. Notably, none of the FIRs cited against the petitioner pertained to the security of the Union Territory of Jammu & Kashmir, further undermining the basis of his detention.

Citing deficiencies in the District Magistrate's decision-making process and the absence of legal grounds for the detention, the Court declared the detention order illegal and ordered the immediate release of the petitioner from custody.It directed the concerned authorities to ensure prompt compliance with the release order to uphold the petitioner's fundamental rights.

"The preventive detention of the petitioner is held to be illegal. The preventive detention order No. 16/DMB/PSA/2013 dated 10.03.2023 read with approval and confirmation order passed by the Govt. of UT of Jammu & Kashmir are hereby quashed. The petitioner is directed to be released from his custody from the concerned Jail with immediate effect for which the Superintendent of the concerned Jail as well as the respondent No. 2 District Magistrate, Baramulla to ensure that the petitioner does not suffer delay in earning his release from the Jail where he is being detained under the quashed detention order," the Court o.

Cause Title: Rayees Ahmad Khan v. Union Territory of Jammu & Kashmir and Anr.

Appearance:-

Petitioner: Advocate N. A. Ronga

Respondent: Advocate Jehangir Dar (GA)

Click here to read/download the Judgment


Justice Rahul BhartiJammu & Kashmir & Ladakh High CourtJammu & Kashmir Public Safety Act

Sukriti Mishra