Inability By State's Police Machinery To Take Recourse Under Ordinary Criminal Law Not An Excuse To Invoke Preventive Detention: J&K High Court

“The inability on part of the State's police machinery to take recourse to ordinary criminal law should not be an excuse to invoke the jurisdiction of preventive detention," remarked Justice Wasim Sadiq Nargal in his judgment, pointing out that the Indian Penal Code had adequate provisions to address the offenses attributed to Khan.

Background:

Khan, a security guard, found himself at the centre of a legal storm stemming from a family rivalry with one Mohammad Rayaz. A series of criminal incidents escalated tensions between the two families, beginning with an assault on Khan's sister-in-law in May 2023. Following this, multiple FIRs were filed against Rayaz and his family, and a counter FIR was lodged against Khan's family.

In March 2024, another fight occurred, leading to the registration of another FIR against Khan and others for serious offences, including attempted murder. Although Khan was granted bail, the authorities, led by the Senior Superintendent of Police (SSP) Poonch, initiated proceedings under the PSA, leading to his preventive detention.

Senior Advocate Sunil Sethi, representing Khan, argued that the detention order was based on fabricated FIRs and that crucial details, such as the grant of bail, were deliberately withheld by the authorities. He pointed out that the detaining authority relied on outdated and irrelevant incidents, including an event from 2012, when Khan was only 13 years old.

Sethi contended that the detaining authority issued the PSA order on the same day Khan's bail was made absolute by the judicial magistrate. This, he argued, was a clear attempt by the State to subvert judicial authority and keep Khan detained despite the court's orders.

On behalf of the State, the Deputy Advocate General, Pawan Dev Singh, argued that Khan was a habitual offender, posing a significant threat to public order. He defended the detention as necessary for maintaining public peace, asserting that Khan's activities extended beyond mere breaches of law and order.

Court Observations:

In its detailed judgment, the court dissected the grounds of detention, finding them baseless and unsupported by evidence. Justice Nargal noted that there was no live and proximate link between Khan's alleged past conduct and the need for preventive detention.

“It is to be noted that live and proximate link between the past conduct of the detenue and the imperative need to detain have to be harmonized, in order to rely upon the alleged illegal activities of the detenue. A preventive detention order which is passed without examining a live and proximate link between the event, amounts to punishment without trial”, Justice Nargal remarked.

Furthermore, the failure to supply Khan with the dossier of documents on which the detention was based rendered the order legally unsustainable, the court underscored.

Criticising the detaining authority's casual approach and failure to properly evaluate the facts in the instant case the court explained,

“Before curtailing the liberty of an individual, it is to excogitate that every single day of a human life is crucial, as such, the authorities before detaining anyone must be in a position to justify each and every day the person is being detained. In the instant case, the detaining authority acted rather in a casual manner while issuing the order of detention and curtailed detenue's right to liberty as contained in Article 21 of the Constitution and Article 22(2)”,

Highlighting the fact that the offenses for which Khan was detained were local criminal matters at best and did not amount to subversive activities or threats to public order the court said "Merely alleging vague grounds or allegations is no ground at all," and added that the authorities did not provide any specific evidence to justify the claim that Khan's actions posed a threat to public safety.

The court underscored that the detaining authority failed to justify why Khan's detention was necessary, especially when bail had already been granted by the competent court. Instead of pursuing the cancellation of bail through legal means, the State resorted to preventive detention, which the court condemned as an abuse of power.

In alignment with these observations, the court quashed the preventive detention order and ordered Khan's immediate release subject to his involvement in any other case.

Case Title: Anju Khan Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 268

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