Alleged Role In Enforcing 2015 Kashmir Bandh Too Remote To Justify 2022 Preventive Detention: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court has held that allegations relating to a person's involvement in enforcing hartal and bandh calls in Kashmir cannot justify preventive detention years later in the absence of any proximate material linking such activities to the detention order.The Court observed that preventive detention under the Jammu and Kashmir Public Safety Act, 1978 must be founded on a live and proximate nexus between the alleged prejudicial activities and the order of detention. Where the allegations are stale and unsupported by any recent material, the detention order cannot be sustained. A Bench of Justice Sanjay Parihar observed, “.... Though the respondents alleged that the petitioner used to compel shopkeepers in Maisuma and Gowkadal to shut their shops in support of hartal and bandh calls, no particulars whatsoever have been furnished indicating any such activity after the year 2015 or immediately prior to the issuance of the detention order.” The Court further found a complete absence of proximity between the last alleged activity and the detention order passed in 2022. The Court was hearing a writ petition challenging a preventive detention order issued by the District Magistrate, Srinagar under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, directing detention of the petitioner on the ground that his activities were prejudicial to public order and security of the State. The petitioner challenged Order contending that the criminal cases relied upon by the authorities had been falsely registered and that he had either never been arrested in those cases or had secured anticipatory bail. He also asserted that no prejudicial activity had been attributed to him for several years preceding the detention order. According to the detention record, the Senior Superintendent of Police submitted a dossier to the District Magistrate, Srinagar, who thereafter passed the impugned detention order directing preventive detention of the petitioner. The grounds of detention referred to 23 FIRs registered at Police Station Maisuma between 2009 and 2015, alleging involvement in incidents of stone pelting and offences under various provisions of the Ranbir Penal Code. The respondents contended that the petitioner was involved in activities aimed at disturbing peace and tranquillity and promoting secessionist tendencies. It was alleged that he, along with like-minded persons, propagated the ideology of secessionist elements and participated in activities prejudicial to public order and security. The Court began by reiterating that preventive detention is preventive and not punitive in nature. It observed that Article 22(5) of the Constitution of India read with Section 13 of the Jammu and Kashmir Public Safety Act guarantees to a detenue the right to be informed of the grounds of detention so as to enable an effective representation against the order. Examining the detention record, the Court noted that the detention order was founded upon twenty-three FIRs allegedly registered between 2009 and 2015. However, the authorities had not placed any material on record showing that the petitioner had engaged in any activity prejudicial to public order or security of the State between 2015 and the passing of the detention order in April 2022. The Court specifically addressed the allegation that the petitioner compelled shopkeepers in Maisuma and Gowkadal to shut their establishments in support of hartal and bandh calls. It found that no particulars had been furnished indicating that such activities had continued after 2015 or immediately before issuance of the detention order. The Court observed that “the allegation that the petitioner was associated with persons seeking to disturb normalcy in the Kashmir Valley remains vague and unsupported by any proximate material.” Holding that preventive detention requires a real and immediate nexus between past conduct and the need for detention, the Court concluded that “the grounds of detention, on the face of the record, appear stale and lacking in immediacy.” The Court also examined the delay in execution of the detention order. Referring to its earlier decision in Attaullah Malik v. UT of J&K (2023), it noted that unexplained delay in executing a detention warrant can undermine the very basis of the detaining authority's subjective satisfaction. The Court found that although the detention order was passed on 08.04.2022, it remained unexecuted until its operation was stayed by the Court on 04.04.2023. The respondents failed to explain why no steps had been taken to execute the order during this period, the court pointed. The Court further found that it was not even the case of the respondents that the petitioner had absconded or evaded arrest. On the contrary, the material suggested that the detention order remained only on paper and was never seriously sought to be implemented. The Court observed that the authorities were unable to furnish any satisfactory...

Alleged Role In Enforcing 2015 Kashmir Bandh Too Remote To Justify 2022 Preventive Detention: J&K&L High Court

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Alleged Role In Enforcing 2015 Kashmir Bandh Too Remote To Justify 2022 Preventive Detention: J&K&L High Court

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