Srinagar, Sept. 12, KDC: Holding that considerations of state security cannot dispense with procedural safeguards, the High Court of Jammu & Kashmir and Ladakh has quashed the detention of a Kupwara resident under the Public Safety Act (PSA), ruling that the failure to furnish relied-upon police communications violated his constitutional right to submit an effective representation.
Allowing a habeas corpus petition, Justice M. A. Chowdhary set aside detention order No. 12-DMK/PSA of 2025, passed by District Magistrate Kupwara on April 30, 2025, against Showkat Ahmad Bhat, a resident of Shartgund Bala, Tehsil Qalamabad. The court directed authorities to release him forthwith if his custody is not required in any other lawful proceedings.
The detaining authority had placed Bhat under preventive custody under Section 8 of the PSA on grounds of alleged strong association with the banned militant outfit Hizbul Mujahideen and being a threat to state security. The dossier made reference to a six-year-old case, FIR No. 75/2018, registered at Police Station Qalamabad under Section 307 RPC, Arms Act, and the UAPA, in which the petitioner was already on bail, while asserting vague recent activities.
Scrutinizing the record, the court discovered that while the grounds of detention explicitly cited two police reports dated April 27, 2025, and April 29, 2025, the subsequent communication of April 29 was never furnished to the detenue.
Rejecting the state’s contention that no prejudice was caused, Justice Chowdhary observed, “Article 22(5) mandates that the detenue shall be communicated the grounds on which the order of detention has been made and shall be afforded the earliest opportunity of making a representation against the order. The right to make a representation necessarily means a real and effective right of representation. A detenue cannot effectively exercise that right unless the material relied upon for making the detention order is supplied to him.”
The Bench underlined that the omission could not be treated as an inconsequential technicality, noting that once a document forms part of the material shaping the detaining authority’s subjective satisfaction, withholding it strikes at the root of constitutional protections.
Delivering a strong observation on executive detention powers, Justice Chowdhary held, “This Court is mindful and conscious that the object of the impugned detention is stated to be prevention of acts prejudicial to the security of the UT of J&K, which is undoubtedly a matter of grave constitutional and public importance. That consideration, however, cannot dispense with the procedural safeguards guaranteed to a person subjected to preventive detention. Indeed, the more serious the consequence of the detention, the greater is the need for strict adherence to the constitutional safeguards. The Court cannot sustain deprivation of personal liberty merely because the allegation relates to the security of the State, if the statutory and constitutional procedure prescribed for such deprivation has not been followed.”
The High Court also faulted the administration for anchoring the preventive detention to the 2018 FIR without demonstrating any live and proximate link to the present day, while failing to provide concrete particulars regarding his alleged recent conduct.
Citing the Supreme Court ruling in Jaseela Shaji v. Union of India, the Bench concluded that non-supply of the April 29 police communication, coupled with the absence of specific particulars and reliance on a stale FIR, rendered the detention order legally unsustainable.
Advocate Imtiyaz Sofi appeared for the petitioner, while Government Advocate Faheem Nisar Shah represented the Union Territory administration. (KDC)
