Non-Disclosure Of Confidential Intel In Public Interest Doesn't Violate Detenu's Rights: J&K High Court Upholds Detention Order
The Jammu & Kashmir and Ladakh High Court on Monday dismissed a habeas corpus petition challenging the preventive detention under the Public Safety Act (PSA), observing that not furnishing confidential information to the detenu, which would have been against public interest, cannot be construed as a violation of constitutional or statutory rights.Justice Sanjay Dhar upheld the...
The Jammu & Kashmir and Ladakh High Court on Monday dismissed a habeas corpus petition challenging the preventive detention under the Public Safety Act (PSA), observing that not furnishing confidential information to the detenu, which would have been against public interest, cannot be construed as a violation of constitutional or statutory rights.
Justice Sanjay Dhar upheld the detention order, emphasizing the state's prerogative to withhold sensitive intelligence material in the interest of national security.
“.. Merely because confidential information was not provided to the petitioner, which in the circumstances, would have been against the public interest, it cannot be stated that constitutional and statutory rights of the petitioner have been violated so as to entail quashment of the impugned order”, Justice Dhar remarked.
The petitioner, Mumtaz Ahmed, was detained under PSA order passed by the District Magistrate, Poonch on allegations of acting as an Over Ground Worker (OGW) for the banned terror outfit Jaish-e-Mohammad (JeM). The detention order cited his involvement in facilitating terrorist movements, harboring militants, and creating an atmosphere of fear in Poonch district.
Ahmed challenged the order, contending that it was passed "mechanically" without application of mind, as the grounds of detention were a "replica" of the police dossier. He further alleged that he was not provided "whole material" forming the basis of his detention, including an intelligence report annexed to the dossier, thereby impeding his right to make an effective representation.
Addressing the contention of the petitioner that the non-supply of the complete dossier, particularly an annexure (a special report by the District Special Branch) had violated his rights the Court observed that the record confirmed that the petitioner had received the detention order, notice, grounds of detention, and five pages of the dossier. However, the court also noted that the annexure, a special intelligence report was not furnished.
Justice Dhar, relying on the Supreme Court's ruling in Wasi-ud-din Ahmed vs. D.M. Aligarh [(1981) 4 SCC 521], and a Division Bench ruling in Mian Abdul Qayoom vs. U.T. of J&K [2020(4) JKJ(HC) 127], clarified that such intelligence reports need not be disclosed if doing so would compromise public interest.
“Thus, it is clear that the detaining authority is not required to disclose those facts to a detenue, disclosure whereof it considers to be against the public interest. The copy of the intelligence report submitted by the District Special Branch could not have been supplied to the petitioner without compromising the public interest”, the court remarked.
Citing Sub-section (2) of Section 13 of the J&K Public Safety Act and clause (6) of Article 22 of the Constitution, the Court underscored that the law expressly permits withholding of information that the Detaining Authority considers prejudicial to public interest.
Dealing with the argument that the grounds of detention were a replica of the dossier and hence demonstrated non-application of mind by the Detaining Authority the Court held that although the grounds of detention did reproduce some facts from the police dossier, they also revealed independent application of mind by the Detaining Authority.
It noted that the Authority specifically referred to the petitioner's link with wanted terrorist Haq Nawaz (based in Saudi Arabia) and his association with PAFF, a proxy of Jaish-e-Mohammad. The Authority had thus concluded that the petitioner's actions posed a serious threat to the security of the Union Territory and the Indian State, the court stated.
Rejecting the contention of mechanical reproduction, the Court found that the grounds of detention "clearly reflect application of mind" and that the Detaining Authority had "drawn its subjective satisfaction" on the basis of the materials presented.
“Merely because there is reproduction of the certain factual aspects narrated in the Police dossier in the grounds of detention does not necessarily prove non application of mind by the Detaining Authority. The grounds of detention clearly indicate that the Detaining Authority has applied its mind after noticing the facts mentioned in the dossier of detention”, the court recorded.
Finding no merit in the petition, the Court thus dismissed it.
Case Title: Mumtaz Ahmed th. Nisar Ahmed Vs UT Of J&K
Citation: 2025 LiveLaw (JKL) 141
