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Synopsis

The High Court of Jammu & Kashmir and Ladakh at Srinagar, in a recent judgment nullified a preventive detention order rendering it flawed and invalid as it cited "security of the State," a term no longer applicable after the reorganization of Jammu & Kashmir into a Union Territory.

The court, presided over by Justice Rahul Bharti, quashed the preventive detention order against Rayees Ahmad Khan, whose detention was challenged through a writ petition filed by his wife, Farhat Begum, on May 2, 2023, seeking a writ of habeas corpus. The court noted “to employ the expression “security of the State” as a ground of preventive detention in a preventive detention order and, therefore, an order so passed with the said expression “Security of the State” being retained as it is, technically disqualifies to be a valid order of preventive detention against a detenue.”

The court observed that a review of the Jammu & Kashmir Public Safety Act, 1978, as amended following the Jammu & Kashmir Reorganization Act, 2019, clearly indicates that "security of the State" is no longer a valid statutory ground for preventive detention. The political entity of the State of Jammu & Kashmir was dissolved by the 2019 Reorganization Act, which created two Union Territories: Jammu & Kashmir and Ladakh. Consequently, Section 8 of the Public Safety Act was amended under the powers conferred by the Reorganization Act. Specifically, S.O. 1229(E) of 2020, issued on March 31, 2020, through the J&K Reorganization (Adaptation of State Laws) Order, 2020, replaced "security of the State" with "security of the Union Territory of Jammu & Kashmir." This change means that detaining someone under Section 8(1)(a)(i) now requires that their activities be prejudicial to the security of the Union Territory of Jammu & Kashmir.

The court further said “there cannot be any deviation from following the letters of any given preventive detention law so as to serve the spirit of said law,” emphasising that the J&K Public Safety Act, 1978, is a preventive detention law that incorporates procedural safeguards to benefit both society and potential detainees.

The court held that when the petitioner was informed of his detention, he was made to believe it was to prevent him from acting in a manner prejudicial to the security of the State, specifically the former State of Jammu & Kashmir. However, since the State of Jammu & Kashmir no longer exists as a political entity, it is erroneous to base a detention order on its security under the J&K Public Safety Act, 1978.

The court said “the preventive detention of the petitioner is seriously questionable” noting that the District Magistrate of Baramulla (respondent No. 2), made a significant error in applying this outdated rationale. This flawed application of mind, the court ruled, was mirrored by the Government of the Union Territory of Jammu & Kashmir in their approval and confirmation of the detention, bypassing proper scrutiny by the Advisory Board.

Furthermore, the court highlighted that none of the FIRs cited against the petitioner pertain to the security of the Union Territory of Jammu & Kashmir. It held that “assuming for the sake of assumption that security of the State is meant to be security of the UT of Jammu & Kashmir”, was not legally tenable.

The court noted that the District Magistrate failed to demonstrate any application of mind regarding whether he had been fully briefed on the state of the cases related to the FIRs. The references to these FIRs in the detention grounds and order appeared to sensationalise the petitioner’s profile rather than justify preventive detention.

As a result, the court declared the preventive detention of the petitioner illegal and the detention order was quashed.

The court directed the immediate release of the petitioner from custody, with the Superintendent of the concerned jail and the District Magistrate of Baramulla ensuring there is no delay in his release.

 

Cause Title: Rayees Ahmad Khan v Union Territory of Jammu & Kashmir [WP(Crl) No. 147/2023]