Srinagar, July 01, KDC: Holding that preventive detention cannot be sustained on the “mere ipse dixit” of the Senior Superintendent of Police (SSP), the High Court of Jammu & Kashmir and Ladakh has quashed the detention of an alleged overground worker (OGW) under the Public Safety Act (PSA), observing that such an approach would create a “literally a draconian like situation for any citizen” and warning that “mere opinion given fact colouration” cannot become the basis for depriving a person of liberty.
The court ruled that authorities must possess “hardcore reportable and demonstrable factual content” before invoking the extraordinary power of preventive detention.
Allowing a habeas corpus petition filed by Shabir Ahmad Rather, a single bench of Justice Rahul Bharti held that the preventive detention was “more of a vindictive nature rather than for the purpose as meant to be portrayed,” while agreeing with the petitioner’s challenge to the detention order.
In one of the observations in the judgment, the court said acting “just on the mere ipse dixit of the Senior Superintendent of Police (SSP), Awantipora” that the petitioner had resumed subversive activities, without supporting material, amounted to “literally a draconian like situation for any citizen to suffer.” It added that such an approach leaves a citizen with “nothing at his or her disposal to defend against such types of vague and wild impressions and assumptions of District Police.”
Justice Rahul Bharti further ruled that “mere opinion given fact colouration” cannot form the basis for preventive detention under the PSA.
“This Court cannot lend its acceptance that mere opinion given fact colouration can form a basis for subjecting a person to preventive detention custody under J&K Public Safety Act,” the court said.
The court stressed that preventive detention demands objective material rather than subjective suspicion.
“There has to be some hardcore reportable and demonstrable factual content to sustain the suspicion of the District Police that a particular individual in terms of his/her activity/ies is prejudicial to the security of the State.”
Rejecting suspicion as a substitute for evidence, the court held, “In the absence of that material, a simpliciter self entertained opinion resting purely on doubt cannot afford basis for subjecting a person to preventive detention custody and this is exactly what has happened in the present case.”
On these findings, the court quashed Detention Order No. 30/DMP/PSA/24 dated September 4, 2024, together with the approval, confirmation and extension orders issued by the government, and directed that the petitioner be released forthwith if not required in any other case.
The case arose after the Senior Superintendent of Police, Awantipora, submitted a dossier alleging that Rather was a hardcore overground worker of the banned Jaish-e-Mohammad (JeM) who had facilitated the movement of militants and weapons through unconventional routes.
Acting on the dossier, the District Magistrate, Pulwama, issued the PSA detention order on September 4, 2024. The grounds of detention also referred to FIR No. 76 of 2022 registered at Police Station Tral, in which the petitioner had been arrested and later granted bail. The authorities alleged that despite securing bail, he had resumed contact with militants and continued subversive activities.
The petitioner challenged the detention on multiple grounds, arguing that he had not violated any bail condition, that the detention order merely reproduced the police dossier without independent application of mind by the District Magistrate, and that there was no proximate material linking him to any fresh activity warranting preventive detention. He also questioned the legality of the procedure adopted while executing the detention order.
After examining the detention record, Justice Rahul Bharti concluded that the authorities had failed to place any objective material capable of justifying the petitioner’s continued preventive detention under the PSA.
The court held that extraordinary powers under the Public Safety Act cannot be exercised on assumptions or subjective opinions unsupported by demonstrable facts, reaffirming that personal liberty cannot be curtailed except on legally sustainable grounds. (KDC)
