Casualness By Authorities In Passing Detention Order Mocks Constitution: J&K High Court Quashes Detention Of Zee News Urdu Bureau Chief

Criticizing the misuse of preventive detention powers and lamenting the disregard for constitutionality in depriving individuals of their fundamental rights under Articles 21 and 22 a bench of Justice Rahul Bharti observed,

“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”.

Talib, a local journalist from Naka Poonch, had been placed under preventive detention on March 10, 2024, following a detention order passed by the District Magistrate of Poonch based on a police dossier. The dossier, prepared by the Senior Superintendent of Police (SSP) of Poonch, alleged that Talib's activities posed a serious threat to public order. Several FIRs dating back to 2001 were cited, claiming that Talib's criminal behavior justified preventive detention under the Jammu & Kashmir Public Safety Act of 1978.

Talib, however, challenged the detention, alleging that it was a vindictive act by the police aimed at settling personal scores, particularly by the SHO of Police Station Gursai. His writ petition sought to restore his liberty, contending that his detention was in violation of his fundamental rights.

He argued that most of the FIRs mentioned in the police dossier had resulted in acquittals and only two cases were still pending, but even these did not justify his preventive detention. The petitioner further claimed that his detention was a deliberate attempt by the police to suppress his journalistic activities, especially his work highlighting issues related to law enforcement excesses.

Adjudicating his plea for release the High Court found glaring flaws in the actions of both the police and the District Magistrate. Justice Bharti observed that the preventive detention order lacked proper scrutiny and was based on outdated and irrelevant FIRs. Out of the seven FIRs mentioned, six were more than a decade old, and the court found no convincing evidence that these incidents posed an ongoing threat to public order.

“FIRs reckoning from 2001 to 2013, with or without any acquittal in favour of the petitioner are, so distant in point of time of reference that a preventive detention order against the petitioner on the reference of the said FIRs could not have been conceived at the very first instance lest that of granting it”, the bench remarked.

Condemning SSP Poonch, for submitting an "adulterated" dossier, which conveniently omitted crucial facts about Hussain's acquittals the court said,

“This, therefore, surely exposes the mala fide on the part of the respondent No. 4 – Sr. Superintendent of Police (SSP), Poonch in coming up with an adulterated facts against the petitioner with a mindset to somehow get the petitioner behind bars and to suffer loss of his personal liberty at the cost of violation of his fundamental right to life”

Equally concerning was the role of the District Magistrate, who the court said acted as a "novice," merely rubber-stamping the police dossier without exercising independent judgment. The court noted that FIR No. 15/2023, the most recent case against Hussain, involved allegations of assault under sections 354, 452, 504, and 506 of the IPC, but this too was not sufficient grounds for preventive detention.

“.. alleged commission of offences under section 354/452/504/506 of Indian Penal Code which by no stretch of reasoning and reference can be said to be reflective of activities of the petitioner to be prejudicial to the public order”, the court maintained.

Stressing that preventive detention powers are exceptional and cannot be used as a substitute for normal criminal law procedures the court referred to the Supreme Court's judgment in Mallada K. Sri Ram v. State of Telangana, and reminded the authorities that preventive detention must be based on an imminent threat to public order, not merely on past conduct or pending criminal cases.

The court lamented how the authorities had failed to respect constitutional safeguards, transforming preventive detention into an arbitrary tool of harassment.

The High Court thus quashed the detention order against Talib Hussain, directing his immediate release.

Case Title: Talib Hussain @ Javied Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 261

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