Using “Security Of State” As Grounds To Detain Person In A Union Territory Is Valid Exercise Of Detaining Authority's Power: J&K High Court

Dismissing an appeal against a single bench judgment that dismissed a habeas corpus plea a bench comprising Chief Justice N Kotiswar Singh and Justice Moksha Khajuria Kazmi explained,

“There is no doubt that the definition of State as contained in [Section 3 (58) of General Clauses Act, 1897] includes Union Territory. The term, “all local or other authorities within the territory of India or under the control of the Government of India” comprises States and Union Territories”.

Case Background:

The case originated from an appeal filed against the order of preventive detention of Yawar Ahmad Malik, issued by the District Magistrate, Kulgam, under the Jammu and Kashmir Public Safety Act (PSA), 1978. Malik's detention, ordered on June 25, 2022, was intended to prevent him from engaging in activities prejudicial to the security of the State.

Malik's father, the appellant, challenged this detention before the Single Bench, arguing that the grounds for detention were vague and that Malik was not provided with essential documents, such as the FIR, witness statements, and other material relied upon by the detaining authority, thus infringing on his right to make an effective representation.

The Single Bench dismissed the writ petition leading to the present appeal. The appellant contended that the Single Bench had failed to consider the grounds challenging the detention order's validity, legality, and constitutionality.

The counsel for the appellant highlighted several points, including the lack of evidence labeling Malik as an Over-Ground Worker (OGW) and a member of the banned terrorist organization Lashkar-e-Taiba (LeT), and the detaining authority's failure to provide the necessary materials to the detainee.

Conversely, the respondents defended the detention order, asserting that it was based on sound logic and that the detaining authority had duly applied its mind before issuing the order.

Court's Observations:

After reviewing the case, the division bench held that the grounds for detention were precise, pertinent, proximate, and relevant. The Court cited precedents from the Supreme Court, including Ashutosh Lahiry v. State of Delhi, State of Gujarat v. Adam Kasam Bhaya, and Subramanian v. State of Tamil Nadu, affirming that the grounds disclosed by the government were relevant to prevent activities prejudicial to the state's security or public order.

Commenting on the contention of the appellant that there was non application of mind on the part of detaining authority as it had cited “Security of the State” as a ground of detention when J&K is a Union Territory post J&K Reorganization Act 2019 the court said,

“The term State includes the Government of each State that is the State Executive and legislature of each State that is the State legislatures. It is pertinent to mention that it includes Union Territories as well”

Emphasising that it does not sit in appeal over the decision of the detaining authority and cannot substitute its opinion when the grounds of detention meet the required standards the Court found that the detaining authority had applied its mind to draw subjective satisfaction before ordering Malik's preventive detention.

The Division bench thus dismissed the appeal, upholding the Single Bench's judgment and affirming the detention order as legally sound and free from any infirmity.

Case Title: Yawar Ahmad Malik Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 181

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