J&K High Court Pulls Up DM Over 'Illegal' Detention Order, Says Deprivation Of Liberty Was Treated As “Administrative Excursion”

In allowing a habeas corpus petition Justice Rahul Bharti recorded,

“A French proverb, 'A barbe de fol apprend-on a raire' meaning 'On a fool's beard the barber learns to shave' is a most inviting introduction to the case in hand wherein at the precious cost of the petitioner's fundamental right to personal liberty, the District Magistrate, Udhampur has first committed a faux pas and then concerted to cover up the same.”, emphasising that the District Magistrate's actions had “seriously trampled” on the petitioner's fundamental rights.

The habeas corpus petition had challenged the detention order that was passed by the District Magistrate, Udhampur based on a dossier provided by the Senior Superintendent of Police, Udhampur. The dossier had accused the petitioner of criminal activities, but the court found that the grounds for detention were vague and failed to meet the legal requirements for depriving someone of their personal liberty under the Public Safety Act.

The detention order's reference to maintaining “public peace and tranquillity” was deemed legally insufficient, and the subsequent corrigendum issued by the District Magistrate to correct this language was also found to have no legal basis.

The court referenced the Supreme Court's decision in Mallada K Sri Ram v. The State of Telangana and others, which held that “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.'” Justice Bharti underscored the importance of preventing the misuse of preventive detention powers, as these are exceptional and can severely affect personal liberty.

The High Court expressed concern over the District Magistrate's competence in handling preventive detention matters. The judgement remarked that her ability to exercise such jurisdiction was “seriously suspect.”

It further recommended that the Home Department of Jammu & Kashmir reassess her authority to issue detention orders in the future to avoid further violations of fundamental rights. The court warned that similar errors could result in more serious infringements on personal liberty.

The court remarked that the case displayed an alarming level of casualness and callousness by the District Magistrate, Udhampur, in issuing the preventive detention order. Justice Bharti observed that the District Magistrate treated the deprivation of personal liberty as "a matter of an administrative excursion" rather than the serious legal matter it was.

Justice Bharti further observed that the District Magistrate had overstepped her legal authority by issuing a corrigendum after the original detention order had already been approved by the government of Jammu & Kashmir.

The court noted that once the government approved the detention order, the District Magistrate's role in the matter was complete, and she became functus officio, meaning she no longer had any legal power to alter or amend the order. By attempting to make changes after this point, the District Magistrate acted outside her jurisdiction, rendering her actions unlawful.

Though the court considered imposing costs on the District Magistrate for her conduct, it ultimately decided against doing so after the government's counsel requested leniency. However, Justice Bharti emphasized the seriousness of the errors committed and noted that the District Magistrate's actions had caused unnecessary harm to the petitioner's rights.

The court ultimately quashed the preventive detention order, finding it illegal from its very inception, and ordering the immediate release of the petitioner.

Case Title: Ashraf Ali @ Shiffu Vs Union Territory of Jammu and Kashmir

Citation: 2024 LiveLaw (JKL) 262

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