Situation In Kashmir Does Not Permit Disclosure Of Confidential Information In Detention Order, Might Affect National Security: High Court

The Jammu and Kashmir and Ladakh High Court on Friday said that the disclosure of confidential and sensitive information in the grounds of detention of a person detained under Public Safety Act [PSA] can be counter-productive to the maintenance of normalcy in the Valley.

The bench of Chief Justice Pankaj Mithal and Justice Moksha Kazmi Khajuria observed:

"It may be worth noting that nothing more as revealed in the grounds of detention could have been spelt out as it would have been counter-productive to the maintenance of security of the State and normalcy in the valley. The situation in the valley does not permit disclosure of any further confidential or sensitive information which if goes in the hands of the separatist group would certainly be a great threat to the nation".

Rejecting an argument regarding vagueness of grounds of detention in a PSA case, the bench further said:

"The vagueness of the grounds of detention have to be considered in the fact of the situation prevailing in the area specially Kashmir which has been greatly affected by militancy in the past. In view of the aforesaid facts and circumstances, we are of a firm opinion that the detention order cannot be said to be faulty on the ground of vagueness."

The observations were made by the bench in its decision on a plea wherein the detenu had challenged the writ court verdict whereby his detention under PSA had been upheld.

The petitioner, a 27-year-old, was detained under the orders issued by the District Magistrate Pulwama in October 30, 2021 in order to prevent him from any subversive activity prejudicial to the security of the State. Subsequently he challenged the order of detention before the Single Judge who after considering the matter dismissed his plea and upheld the order of detention vide judgment and order dated 12th May 2022. The single bench decision was challenged in appeal.

While dealing with the primary contention of the counsel for the petitioner that the grounds of detention are vague which rendered it difficult for the petitioner-appellant to file an effective representation, the bench observed that a plain reading of the grounds of detention would establish that the allegations made against the petitioner-appellant are very specific and there is no vagueness.

The court also said that the appellant never made any "slightest effort" to submit even a simple representation contending that he is submitting it "but with a caveat that it may not be effective as the grounds of detention were vague".

Examining the grounds of detention, the bench observed that the grounds of detention in unequivocal terms state that the youth "is affiliated with The Resistance Front (TRF), an organization with the aim and object to secede the Union Territory of JK from the Union Territory of India so as to annex it with Pakistan".

The court also noted that dossier specifically points that the he "in connivance with the terrorists is providing logistic support including transporting of arms for terrorists from one place to another through unconventional and safe passages". The bench further said that "he has been identified after hard coordinated efforts of the various agencies which revealed his linkage with terrorist outlets."

However, the court accepted an argument that the detenu was not provided complete material, like the dossier relied upon by the District Magistrate in passing the impugned order, to enable him file an effective and purposeful representation.

"It is an admitted position as is revealed from the plain reading of the detention order that the detaining authority has passed the same on the basis of the dossier supplied by the Senior Superintendent of Police. The copy of the said dossier was never supplied to the detenue-appellant", the bench noted.

As the entire dossier which forms the basis of the detention order was not provided to him, the court said, "he was denied his Constitutional right to make a meaningful and a purposeful representation vitiating the order of detention."

Accordingly, the bench allowed the appeal setting aside the judgment and order of the writ court and the impugned order of detention.

"The personal liberty of the petitioner-appellant is directed to be restored if not wanted in any other case," said the court

Case Title : Murtaza Rashid Vs UT of J&K