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Synopsis

The Jammu & Kashmir and Ladakh High Court has quashed the preventive detention of Talib Hussain, a Zee News Urdu journalist. The court ruled that the detention violated the fundamental rights enshrined under Articles 21 and 22 of the Indian Constitution, highlighting misuse of the Jammu & Kashmir Public Safety Act, 1978. It further condemned the authorities' actions, stating that the detention was based on mala fide intent and lacked proper legal basis.

Justice Rahul Bharti, presiding over the case, rebuked the authorities for their “casualness and callousness” in passing mechanical detention orders that undermine the Constitution of India. The court observed that the authorities had acted without any sense of constitutional responsibility.

“This Court would like to refresh the mindset of the sponsoring as well as detention order making authority acting in exercise of preventive detention jurisdiction who have the tendency to fall in misconception of their authority and office in subjecting a person/citizen to the preventive detention custody on a pretext which do not fall within the scope of preventive detention jurisdiction but still lead themselves by habit of their casualness and callousness without bearing and exhibiting any sense of constitutionality in seeking and granting preventive detention order/s against person/s at the cost of mocking the Constitution of India which in its Part-III guarantees fundamental right to life and personal liberty in terms of its articles 21 & 22,”  the court remarked.

The case involved Talib Hussain, a 45-year-old journalist from Naka Manjhari, Poonch, who was detained under the Jammu & Kashmir Public Safety Act, 1978, on March 10, 2024, following an order issued by the District Magistrate, Poonch. The detention was based on a dossier submitted by the Senior Superintendent of Police (SSP), Poonch, which described Hussain as a habitual offender engaged in activities that disrupted public order and peace. The dossier cited several past criminal cases against Hussain, including FIRs dating back to 2001, alleging that despite legal interventions, he continued to engage in anti-social activities.

The dossier asserted that Hussain's actions posed a grave threat to public order, warranting his detention to prevent further criminal activity. It referenced several FIRs filed between 2001 and 2023, accusing him of offences ranging from physical assault to public disorder. The preventive detention order was carried out by the Station House Officer (SHO) of Gursai Police Station, who arrested Hussain and confined him to Poonch District Jail. The detention order was subsequently endorsed by the Jammu & Kashmir government, with the detention period extended in June 2024.

Hussain, through his counsel, Advocate Tanzir Khatana, argued that the detention was motivated by personal vendetta from the local police and violated his fundamental rights. They contended that most of the FIRs cited in the dossier had resulted in acquittals, and the authorities deliberately withheld this information to portray Hussain as a persistent offender. The petitioners also argued that the accusations in FIR No. 15/2023, which was still under trial, were insufficient to justify preventive detention, as it did not amount to activities threatening public order.

Contrarily, the Union Territory of J&K, represented by Deputy Advocate General Pawan Dev Singh, defended the preventive detention order, claiming that Hussain's repeated criminal behaviour posed a risk to public safety and order. It was argued that ordinary criminal proceedings had failed to deter him, necessitating preventive detention to maintain peace.

The court noted significant lapses in the authorities' handling of the case. The court observed that “there is no iota of doubt that the preventive detention of the petitioner is a sheer abuse of jurisdiction of preventive detention under the Jammu & Kashmir Public Safety Act, 1978,” pointing out that the SSP, Poonch, had failed to disclose the acquittals in the majority of FIRs listed in the dossier, which demonstrated a clear intent to misrepresent facts and justify Hussain's detention. Additionally, the court criticised the District Magistrate, Poonch, for failing to apply his mind independently when issuing the detention order, relying solely on the SSP's report.

The court emphasised that preventive detention laws are meant to address exceptional circumstances where public order is genuinely at risk. However, in this case, the allegations against Hussain did not meet the threshold required for invoking such drastic measures. The court also referenced the Supreme Court's judgment in Mallada K. Sri Ram v. State of Telangana, which held that mere apprehension of law and order disturbances cannot justify preventive detention.

In conclusion, the court ruled that Hussain's detention was illegal, constituting an abuse of the preventive detention law. The court ordered his immediate release and strongly cautioned the authorities against misusing their powers to curtail personal liberty without sufficient grounds.

 

Cause Title: Talib Hussain @ Javied v Union Territory of Jammu & Kashmir [HCP No. 45/2024]