Courts Should Meticulously Scrutinise Procedural Norms In Preventive Detention Cases, Any Deviation From Procedure Should Favour Detenue: J&K High Court

The Divison bench comprising Chief Justice N Kotiswar Singh & Justice Wasim Sadiq Nargal emphasised,

“Any deviation from procedural requirements should favour the detenu. Courts have a constitutional duty to protect individual and civil liberties, which is paramount. This duty not only upholds the rights of individuals and society but also preserves the foundational principles of our Constitution”.

Background:

The matter pertained to Athar Mushtaq Khan who was detained under the J&K PSA based on accusations of being an active member of the banned terrorist organization Hizbul Mujahideen. Khan first challenged this detention by filing a Habeas Corpus petition before a single judge of the High Court. However, this writ petition was dismissed by a single judge.

Undeterred, Khan exercised his right to appeal the dismissal of his writ petition. He filed a Letters Patent Appeal (LPA) before the Division Bench of the High Court, seeking to quash the detention order.

Assailing the single bench judgment Khan's counsel reiterated his arguments from the dismissed writ petition. he contended that the grounds for detention were fabricated and lacked substantial evidence. He further argued that the detaining authority failed to properly assess the situation before resorting to preventive detention and that cancelling his bail would have been a more proportional response.

However, the government defended the detention, contending that the activities of the detenu posed a grave threat to the security of the state. They argued that all statutory and constitutional requirements had been meticulously adhered to, and the detaining authority had acted within its legal ambit.

Court's Observations:

Clarifying the scope of judicial review in preventive detention cases the bench cited judgements in Kartar Singh v. State of Punjab and Nakula Begum v. State of J&K and observed that while courts cannot substitute their own judgment for that of the detaining authority, they have the power to assess the adequacy of the grounds provided and ensure compliance with procedural safeguards.

Upon meticulously examining the case the bench found the grounds for detention to be unsubstantiated by the record provided by the state as the accusations lacked concrete evidence, rendering them vague and inadequate.

“The respondent no. 2-District Magistrate, Pulwama has nowhere referred as to, on what factual basis and inputs shared by the Senior Superintendent of Police (SSP), Pulwama, the petitioner was so projected as Over Ground Worker as also a member of the banned terrorist Organization (Hizbul Mujahideen)”, the bench noted.

Cautioning detaining authorities against such an approach, Justice Nargal for the bench recorded,

“If this goes unquestioned, then the security agencies would be at liberty to implicate any innocent citizen of this country, without their actual involvement into any criminal activity which in itself would be an unfair target on any citizen by the law enforcement agency simply because they are labeled as criminals”.

Highlighting the importance of exploring less restrictive options the court pointed out that alternate measures, such as cancelling Khan's bail, could have been pursued before resorting to preventive detention.

“In our view the proper course of action for the respondents would have been to move an application for cancellation of bail, if any further untoward incident prejudicial to the security of the State were apprehended to take place in their opinion. Since, no such application for cancellation of bail had been moved by the respondents, therefore, the non-compliance of the statutory provision of the criminal law vitiates the order of detention”, the court remarked.

While firmly emphasising its role in reviewing detention orders that courts have carved within which the validity of the subjective satisfaction of the detaining authority can be scrutinised the bench reasoned,

“Preventive detention laws in India are extraordinary statutes, granting significant power to the State. Such laws can easily lead to arbitrary exercise of authority by the Government. Therefore, it is imperative for the Courts to meticulously scrutinize cases involving these laws, ensuring strict adherence to procedural norms and safeguarding against governmental overreach”.

In light of these observations, the appeal was allowed hence quashing the detention order and directing the immediate release of the detenu.

Case Title: Athar Mushtaq Khan Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 60

Click Here To Read/Download Judgment