Srinagar, July 16, KDC: The High Court of Jammu and Kashmir and Ladakh has quashed the preventive detention of a Jammu resident under the Public Safety Act, holding that the sponsoring agency withheld crucial facts relating to his custody and grant of bail from the detaining authority, thereby vitiating the subjective satisfaction required for invoking the law.
The Court also held that an unexplained delay of more than a month in deciding his representation amounted to a separate violation of the constitutional safeguards governing preventive detention.
Justice Rajesh Sekhri passed the judgment while allowing a habeas corpus petition filed by Rahil Gargotra, who had challenged his detention under an order issued by the District Magistrate, Jammu, in September 2025.
The petitioner contended that before the detention order was passed, he had already been arrested in another criminal case and was granted bail by the trial court on the very day the detention order was issued. According to him, neither his custody nor the bail order was brought to the notice of the detaining authority, depriving it of material facts necessary to decide whether preventive detention was warranted. He also challenged the prolonged delay in the disposal of his representation against the detention.
The Union Territory argued that the police dossier had been prepared before registration of the subsequent FIR and therefore could not have included those developments. It also initially claimed that the bail order relied upon by the petitioner related to his brother.
Rejecting the defence, the High Court held that the legality of a preventive detention order must be tested on the basis of all material circumstances existing on the date it is passed, irrespective of when the police dossier was prepared. The Court observed that the sponsoring agency is under a legal obligation to place before the detaining authority every relevant fact capable of influencing its decision, particularly when the proposed detenu is already in judicial custody.
Justice Sekhri observed that settled law requires the detaining authority to demonstrate awareness that a person is already in custody, assess the likelihood of release on bail and record compelling reasons showing why preventive detention remains necessary despite the availability of ordinary criminal law. The Court found that this exercise had not been undertaken because the relevant facts were never placed before the authority.
The Court also noted that the trial court had subsequently corrected a typographical error in the bail order and clarified that bail had indeed been granted to the petitioner. Once the correction was made, the respondents could no longer rely upon the earlier mistake to justify the detention, the Court held.
On the issue of delay, Justice Sekhri said that the right to make a representation under Article 22(5) of the Constitution is a valuable constitutional safeguard and must be dealt with “with utmost expedition”. The Court observed that constitutional protection would be rendered illusory if representations were allowed to move routinely from one department to another without prompt consideration, adding that avoidable or unexplained delay strikes at the heart of the constitutional guarantee against arbitrary detention.
Finding no satisfactory explanation for the delay of more than one month in deciding the representation, the Court held that the constitutional requirement of prompt consideration had been breached.
Concluding that the detention rested on incomplete material and reflected a failure of proper application of mind, the High Court held that the order could not be sustained in law. It quashed the detention and directed the authorities to release the petitioner forthwith, provided he is not required in any other case. (KDC)
