Non-Disclosure Of Intelligence Identifying Activities Of OGWs Does Not Vitiate Preventive Detention: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh held that the activities of Over Ground Workers (OGWs), which are often concealed and detected through intelligence inputs, can validly form the basis of preventive detention under the Public Safety Act.The Court observed that such operatives provide foundational support to terrorist networks, including sharing sensitive information, and that non-disclosure of intelligence material in public interest does not vitiate the detention order.The Court was hearing a Letters Patent Appeal against the judgment of the Writ Court, which had dismissed a habeas corpus petition challenging an order of detention passed under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, by the District Magistrate, Poonch, to prevent the appellant from acting in a manner prejudicial to the security of the State and the Union Territory of Jammu & Kashmir. The Bench comprising Hon'ble the Chief Justice Arun Palli and Hon'ble Mr. Justice Rajnesh Oswal observed, “... OGWs of terrorists organisations act with a level of secrecy that often shields their illegal activities from immediate detection. Their role is foundational; the continued presence of militants in difficult terrain is simply not sustainable without the active support and network provided by OGWs. Recognition must be given to the fact that the activities of Over Ground Workers are primarily identified through intelligence reports. Direct evidence is rarely forthcoming due to the secretive nature and specific mode of operation adopted by these workers”Background:The appellant was detained pursuant to an order issued by the District Magistrate, Poonch, under the Public Safety Act, on the ground that his activities were prejudicial to the security of the State. The detention order was based on material indicating that the appellant was functioning as an Over Ground Worker for the banned outfit Jaish-e-Mohammad and was in contact with a wanted terrorist operative involved in an earlier attack on an Army vehicle. The record revealed that the appellant was alleged to be facilitating terrorist activities by providing logistical support, assisting in transportation of arms and ammunition, and sharing sensitive information regarding the movement of security forces. It was also alleged that he used encrypted communication channels to maintain contact with handlers, thereby evading detection. The detention was challenged before the Writ Court on the grounds that complete material relied upon by the detaining authority was not supplied and that the grounds of detention were a verbatim reproduction of the dossier. The Writ Court rejected these contentions, leading to the present appeal. Court's Observation:The High Court first examined the nature of activities attributed to the appellant and observed that OGWs constitute an essential support structure for terrorist organisations. Their role in facilitating logistics, movement, and dissemination of sensitive information was held to be critical in sustaining militant operations, particularly in difficult terrain. The Court noted that the clandestine manner in which OGWs operate makes direct evidence difficult to obtain. It observed that intelligence inputs, including reports of the District Special Branch, are often the primary basis for identifying such activities, and such material can legitimately form the foundation of preventive detention. On the issue of non-supply of material, the Court held that the detaining authority had relied upon the dossier and the special report of the District Special Branch, and that all relevant material, except privileged intelligence inputs, had been furnished to the appellant. The FIRs referred to in the grounds were found to be part of background narration and not the basis of detention, and their non-supply did not prejudice the appellant's right to representation. The Court further held that intelligence reports are protected from disclosure under Article 22(6) of the Constitution and Section 13(2) of the Public Safety Act, which permit withholding of information in public interest. Relying on the decision in Wasi-ud-din Ahmed v. D.M. Aligarh, the Court observed that non-disclosure of such material does not invalidate the detention order where disclosure would compromise public interest.Addressing the contention that the grounds of detention were a verbatim reproduction of the dossier, the Court observed that although there may be factual similarities, the grounds were independently formulated and reflected due application of mind by the detaining authority. The Court affirmed the finding that the subjective satisfaction of the detaining authority was based on relevant material. The Court also noted that procedural safeguards under Section 13 of the Public Safety Act had been complied with, as the detention order, grounds of detention, and relevant documents were supplied to the appellant at the time of execution, and acknowledgment of receipt was...

Non-Disclosure Of Intelligence Identifying Activities Of OGWs Does Not Vitiate Preventive Detention: J&K&L High Court

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