“Cannot Become Privy To Trampling Of Personal Liberty”: J&K&L High Court Orders Release Of Detenue From Courtroom
The Jammu & Kashmir and Ladakh High Court, while ordering the release of a detenue directly from the courtroom, held that it could not permit the continuation of a preventive detention order that results in trampling of the fundamental right to personal liberty, particularly where such detention is founded on no factual or legal basis.The Court was hearing a habeas corpus petition...
The Jammu & Kashmir and Ladakh High Court, while ordering the release of a detenue directly from the courtroom, held that it could not permit the continuation of a preventive detention order that results in trampling of the fundamental right to personal liberty, particularly where such detention is founded on no factual or legal basis.
The Court was hearing a habeas corpus petition challenging the detention order passed by the Divisional Commissioner, Kashmir, under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
A Bench of Justice Rahul Bharti, while ordering the release, observed: “By no stretch of factual and legal premise, this Court can allow the impugned detention order… to stay and survive otherwise this Court would become privy to trampling of a fundamental right of personal liberty of the petitioner at the hands of the respondents by resorting to preventive detention jurisdiction without any basis”.
The petitioner had challenged the preventive detention order, which had been passed by the Divisional Commissioner, Kashmir, based on a dossier framed by the then Superintendent of Police, Kulgam, pursuant to which he was taken into custody under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
The record revealed that at the time of issuance of the detention order, the petitioner was already in custody as an undertrial in connection with another FIR registered at Police Station Kulgam.
It was further brought on record that the petitioner was subsequently acquitted in the said criminal case. However, instead of being released, he continued to remain in confinement on the strength of the impugned detention order.
The High Court had earlier directed the personal production of the detenue, who was accordingly brought before the Court. The Court noted that such direction was necessitated after it had already found that the impugned detention Order, pursuant to which the petitioner was taken into custody, prima facie appeared to be “a sheer abuse of process of law originating from the Superintendent of Police”.
The Court noted that the Superintendent of Police, while preparing the dossier, had failed to disclose to the detaining authority that the petitioner was already in custody, thereby misleading the authority into exercising preventive detention jurisdiction.
The Court observed that the impugned detention order was nothing “except ego satisfaction of the then Superintendent of Police, Kulgam, who framed a dossier for subjecting the petitioner to preventive detention despite being fully aware and cognizant of the fact that the petitioner was not a free man at the relevant point of time so as to count his personal liberty status as prejudicial to the intendment of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988”.
The Court thus held that the detention order lacked any factual or legal basis and could not be permitted to stand.
Accordingly, the Court allowed the petition and set aside the impugned detention order, declaring “the custody of the petitioner to be illegal” and restored him to his “personal liberty forthwith from the court room itself”.
It was, however, clarified that if the petitioner was required in any other pending criminal case, the process of law would take its own course.
Appearances:
Advocate Wajid Haseeb appeared for the petitioner, while Mohsin Qadiri, Senior AAG, with Advocate Maha Majeed appeared for the respondents.
Case Title: Javid Ahmad Zargar v. Union Territory of J&K & Ors.
Citation: 2026 LiveLaw (JKL)