Srinagar, July 16, KDC: The Jammu and Kashmir and Ladakh High Court has held that a Kupwara resident lost nearly a year of his personal liberty because of what it described as the District Magistrate’s “sheer abuse of preventive detention jurisdiction”, observing that the State escaped liability to pay compensation only because the petitioner had not sought such relief.
Justice Rahul Bharti made the observations while allowing a habeas corpus petition filed by Syed Bilal Ahmad Geelani, holding that the detention order under the Jammu and Kashmir Public Safety Act rested on “non existent material” and could not survive judicial scrutiny.
The Court found that the entire detention was founded on a single criminal case registered at Police Station Handwara in 2010. However, the petitioner had already been acquitted by the Additional Sessions Judge, Handwara, on September 29, 2016. Despite the acquittal having attained finality almost nine years before the detention order was passed, the official dossier continued to describe him as an undertrial and projected him as a threat to the security of the State.
The discrepancy prompted the High Court to call for an explanation from the District Magistrate, Kupwara, on how a person who had already been acquitted continued to be treated as an accused facing trial. The explanation placed before the Court failed to justify the omission.
Justice Bharti held that the Senior Superintendent of Police, Handwara, had prepared the detention dossier “in a blindfold manner” and that the District Magistrate acted upon it without independently verifying whether the material placed before him reflected the true legal position. The Court observed that a judgment of acquittal delivered by a Sessions Court could not reasonably have escaped the notice of either authority.
Holding that the detention had been founded on “non existent material”, the Court said the extraordinary power of preventive detention cannot be exercised on facts that no longer exist in law. Once the only criminal case relied upon had ended in acquittal, there was no factual basis to continue portraying the petitioner as an undertrial for the purpose of invoking preventive detention.
Justice Bharti said the petitioner had already spent more than one year in preventive custody because of what the Court described as an “utterly misconceived preventive detention custody”. The Bench observed that the respondents escaped the burden of paying compensation only because no such relief had been claimed in the writ petition, adding that this was a case where compensation “would have only done justice” to the petitioner after he lost almost a year of his precious personal liberty behind prison.
Concluding that the detention order represented a legally unsustainable exercise of executive power, the High Court declared it illegal and a nullity and directed the authorities to release the petitioner forthwith, provided he was not required in any other case. (KDC)
