J&K&L High Court Quashes Preventive Detention Of AAP MLA Mehraj Malik, Says No Apprehension Of Him Acting Against Public Order
The Jammu & Kashmir and Ladakh High Court has quashed the preventive detention of Mehraj Din Malik, a Member of Legislative Assembly from Doda East, holding that the invocation of the Public Safety Act, 1978 (PSA) was based on allegations that at best amounted to 'law and order' issues and did not satisfy the threshold of 'public order'.The Court ruled that the detaining authority failed...
The Jammu & Kashmir and Ladakh High Court has quashed the preventive detention of Mehraj Din Malik, a Member of Legislative Assembly from Doda East, holding that the invocation of the Public Safety Act, 1978 (PSA) was based on allegations that at best amounted to 'law and order' issues and did not satisfy the threshold of 'public order'.
The Court ruled that the detaining authority failed to demonstrate any apprehension that the detenu was likely to act in a manner prejudicial to public order, and that preventive detention cannot be used as a shortcut to bypass the ordinary criminal process.
The Court was hearing a habeas corpus petition filed through the father of the detenu, challenging the detention order issued by the District Magistrate, Doda, under Section 8(1)(a)(ii) of the PSA, with a view to prevent him from acting in a manner prejudicial to the maintenance of 'public order'.
Quashing the impugned order Justice Mohd Yousuf Wani observed,
“The court is of the opinion that there was no apprehension, that detenu is likely to act in any manner prejudicial to the 'social disorder'. The allegations against the petitioner/detenu covered under the numerous FIRs are presently under investigation/trial before the competent authorities/courts.”
The detention order was based on 18 FIRs (some dating back to 2014, three of which had been withdrawn or compounded) and 16 Daily Diary Reports (DDRs). Malik, an Aam Aadmi Party (AAP) MLA from Doda East, was accused of resisting the shifting of a Primary Health Centre at Kencha, allegedly committing theft of medical equipment and medicines, abusing the Deputy Commissioner on social media, instigating communal disharmony, and creating public disorder through provocative speeches.
The detaining authority claimed that his activities posed a threat to public order and that ordinary criminal law was insufficient to prevent him. The order also relied on DDRs alleging that the detenu had glorified militants like Burhan Wani and Masood Azhar and had appealed to the public to act as "Lashkars".
Court's Observation:
The Court framed seven issues for determination and adjudicated each in detail.
On the distinction between 'law and order' and 'public order', the Court relied on the Constitution Bench judgment in Ram Manohar Lohia v. State of Bihar, (1966) 1 SCR 709, and subsequent rulings in Arun Ghosh v. State of West Bengal, (1970) 1 SCC 98, and Kuso Sah v. State of Bihar, (1974) 1 SCC 195. The Court held that every breach of peace does not lead to public disorder and an act may affect law and order but not public order unless it affects the community at large or disturbs the even tempo of life.
Examining the 14 pending FIRs, the Court found that they pertained mostly to Model Code of Conduct violations during elections or acts of protest against administrative omissions. FIR No. 105/2023 under Sections 153-A and 295-A IPC did not, in the Court's view, constitute 'public disorder'. FIR No. 90/2025 (relating to the health centre incident) was already under investigation, and the DDRs were either unverified or based on allegations already covered by FIRs.
The Court remarked,
“… Such allegations, in the opinion of the Court, do not amount to creating or instigating “public disorder,”. The Registration of the case FIR, which had already been done in respect of the allegations was the proper course warranted under law for proof of the said allegations”
On the use of DDRs, the Court held that unverified and uninvestigated DDR entries could not be considered for ordering preventive detention. The Court referred to its earlier judgment in Kewal Krishan v. Financial Commissioner, ACS Home Department & Ors [WP(Crl) No. 20/2023], where it was observed that DDR reports prepared in quick succession and bereft of details could not be relied upon.
On the need for proximate live link, the Court held that there was no proximity or live link between the alleged incidents (some dating back to 2014) and the passing of the detention order on September 8, 2025. The Court observed that proximity is not only measured in terms of time gap but firstly in terms of the ground for detention public order.
“… preventive detention order have an effect of infraction of normal law and order without effecting the society at large, such activities though unlawful cannot be supposed to have proximity with the detention order passed on the ground of maintenance of public order. The right of an individual guaranteed under Article 21 of the Constitution of India mandates the keeping of a strict vigil on the executive actions from being misused under the garb of maintenance of “public order”, the court underscored.
On the question of whether preventive detention can co-exist with prosecution, the Court acknowledged the Supreme Court's ruling in Haradhan Saha v. State of West Bengal, (1974) AIR 2154, that preventive detention is qualitatively different from punitive detention and may be made even during prosecution. However, the Court distinguished the facts, holding that the present case did not satisfy the threshold of public order, and therefore the invocation of PSA was unjustified.
The Court reiterated the principle from Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, that if the ordinary law of the land can deal with a situation, recourse to a preventive detention law will be illegal.
On the allegation of bias (the detaining authority being the same officer against whom the detenu had made abusive social media posts), the Court declined to hold that the detention order was based on mala fides or personal bias, but instead found that the order suffered from non-application of mind on the substantive issue of public order.
On the failure to supply videos relied upon by the detaining authority, the Court noted that the respondents had sought permission to play videos in court, which indicated that copies of the videos were not furnished to the detenu. The Court held that this failure prevented the detenu from making an effective representation.
On the issue of raising additional grounds in habeas corpus, the Court relied on Mohi-ud-din v. District Magistrate Beed, (1987) AIR 1977, and Ichhu Devi Choraria v. Union of India, 1980 Legal Eagle (SC) 384, holding that in a habeas corpus petition, the burden lies on the detaining authority to satisfy the court that the detention is legal, and the detenu can raise any ground even if not pleaded earlier.
In view of these findings the Court allowed the petition, quashed the detention order and directed the immediate release of the detenu.
Case Title: Mehraj Din Malik (through father Shamas Din) v. UT of J&K & Ors. (HCP No. 139/2025)
Citation: 2026 LiveLaw (JKL)
Appearances
Petitioner: Senior Advocate Mr. Rahul Pant with Mr. Muzaffar Iqbal Khan, Mr. S.S. Ahmed, Ms. Appu Singh Salathia, Mr. Tarig Mougal, Mr. Zulkarnain Chowdhary
Respondents: Senior AAG Mrs. Monika Kohli and Senior Advocate Mr. Sunil Sethi