Jammu & Kashmir High Court Quashes Journalist's Detention Under PSA, Says Detaining Authority Used Public Order, State Security With "Wavering Mind"

Observing that the detaining authority has used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty, the Jammu and Kashmir High Court has quashed the detention order of Journalist Fahad Shah.

A bench of Justice Wasim Sadiq Nargal observed,

"Maintenance of public order and Security and Sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of aside".

The bench was hearing a Habeas Corpus plea filed by the elder brother of Fahad, challenging his detention order in terms of which he had been placed under preventive detention in terms of an order passed by the District Magistrate Srinagar.

In his plea the petitioner submitted that Fahad is a reputed journalist having earned a good name and fame on international level in the field of honest and fair journalism and he is a peace loving and law abiding citizen having no criminal record or any adverse record in his career.

He has never acted in any manner or behaved in any way by his writings or deeds or by using social media which would constitute any offence in terms of law or which could promote violence or lawlessness in the society at large and he never behaved or acted in any manner which could be detrimental or prejudicial to the maintenance of public order or law and order, it was argued.

The petitioner further submitted that petitioner that Fahad was arrested in February last year and falsely booked under Section 13 of ULA(P), Section 124A and Section 505 IPC and consequently, an application of bail was filed before the Court of competent jurisdiction at Pulwama, which granted him bail. However, when the bail order was served upon the police, they did not release Fahad and shifted him to another Police Station where on the same set of allegations, another FIR under Sections 153 and 505 IPC came to be registered, it was averred.

As a countermeasure to the securing of the bail by Fahad, the respondents issued an order of detention against him, by virtue of which he was taken into the preventive custody, the petitioner contended.

After considering the contentions Justice Nargal observed,

“A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the ‘maintenance of public order’. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact.”

Observing that Public order” and “security of the State” are distinct concepts, though not always separate, Justice Nargal explained that while every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State.

Expounding on the mandate of Section 8 of the Public Safety Act the bench observed that the maintenance of public order and Security and Sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and cannot be used simultaneously which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of detention.

"Since the detaining authority has used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty and accordingly, the detention order gets vitiated and cannot sustain the test of law and is liable to be quashed",the bench underscored.

In view of the said legal position the bench allowed the petition and the impugned detention Order was quashed and Fahad was ordered to be set at liberty forthwith provided he was not required in any other case.

Case Title: Peerzada Shah Fahad Vs UT of J&K.

Citation: 2023 LiveLaw (JKL) 91

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