J&K HC Quashes PSA Detention Order Passed on FIRs From 2009–2015, Cites Nearly a Year of Unexplained Non-Execution

The High Court of Jammu & Kashmir and Ladakh quashed a 2022 preventive detention order where the last FIR relied upon dated to 2015 and the warrant went unexecuted for nearly a year without explanation.

Justice Sanjay Parihar, sitting singly at the Srinagar bench of the High Court of Jammu & Kashmir and Ladakh, quashed a preventive detention order passed against Umar Nazir Bhat under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The order, bearing No. DMS/PSA/27/2022 and dated 08.04.2022, had been issued by the District Magistrate, Srinagar, on the ground that Bhat’s activities were prejudicial to the maintenance of public order. The court found two independent and fatal infirmities: the grounds of detention were built entirely on FIRs registered between 2009 and 2015, with no material linking the petitioner to any prejudicial activity after 2015, and the warrant remained unexecuted for nearly a full year — from its issuance in April 2022 until this court stayed its operation on 04.04.2023 — without any satisfactory explanation from the respondents.

The Detention Order and the Petitioner’s Challenge

Bhat filed WP(Crl) No. 95/2023 seeking a writ of certiorari to quash the detention order before its execution and before confirmation by the competent authority. He was represented by Mr. M. Ashraf Wani, Advocate. The Union Territory of J&K and others were represented by Mr. Harris Khan, assisting counsel vice Mr. Mohsin Qadiri, Senior AAG.

The detention order directed Bhat’s lodgement in Central Jail, Kot Bhalwal, Jammu. A corrigendum dated 21.04.2022 subsequently changed the place of lodgement to Central Jail, Srinagar. Despite both the original order and the corrigendum, the warrant was never executed.

Bhat’s case before the court rested on three planks. First, the detention order was founded on 23 FIRs, all registered at Police Station Maisuma between 2009 and 2015, and no prejudicial activity had been attributed to him after 2015. Second, the order had been passed on 08.04.2022 and, being valid for a maximum of two years under the Act of 1978, had outlived its efficacy. Third, the near-year-long gap between the order and the stay, during which no execution attempt was made, vitiated the subjective satisfaction of the detaining authority.

The petitioner also pointed out that neither the dossier nor the grounds of detention had been supplied to him, engaging Article 22(5) of the Constitution of India read with Section 13 of the Public Safety Act, which guarantees a detenue the right to be informed of the grounds of detention so as to enable an effective representation.

The Respondents’ Position

The respondents produced the detention record during the hearing. According to that record, the Senior Superintendent of Police had, vide communication dated 07.04.2022, submitted a dossier to the District Magistrate, Srinagar. Acting on the dossier, the District Magistrate exercised powers under Section 8 of the Public Safety Act, 1978, and passed the impugned order.

The grounds of detention alleged that 23 FIRs had been registered against Bhat between 2009 and 2015 for offences under Sections 307, 336, 332, 427, 147, 148, 353 and 121 RPC as well as Section 3 of the PDD Act, all at Police Station Maisuma. The respondents alleged that Bhat had been involved in stone pelting, unlawful assembly, attempt to murder and breach of public peace, and that he had propagated secessionist ideology and compelled shopkeepers in Maisuma and Gowkadal to observe hartal and bandh calls.

On the question of non-execution, the respondents argued that this court had stayed the operation of the detention order on 04.04.2023 before it could be executed, and that the stay itself explained the non-execution. They contended that the validity of the order had to be examined on the basis of the grounds of detention and the subjective satisfaction of the detaining authority, not on the fact of non-execution. They also relied on a reported judgment at 2015 (12) SCC 127 to argue that a person with dangerous antecedents involved in multiple criminal cases could not claim there was no reasonable basis for preventive detention.

The respondents further submitted that bail granted in criminal cases does not debar the detaining authority from passing a preventive detention order, and that where individual liberty conflicts with the larger interests of public order and State security, individual liberty must yield.

The Legal Issue: Staleness of Grounds and Vitiation of Subjective Satisfaction

The court identified two distinct but related legal questions. The first was whether grounds of detention founded entirely on FIRs from 2009 to 2015, with no material connecting the petitioner to any prejudicial activity between 2015 and the date of the detention order in April 2022, could sustain a valid order of preventive detention. The second was whether the unexplained failure to execute the detention warrant for nearly a year vitiated the subjective satisfaction of the detaining authority.

On the pre-execution challenge, the petitioner relied on the judgment of a coordinate bench of this court in Attaullah Malik v. UT of J&K, OWP 884/2017, decided on 12.10.2023, which held that a detention order can be challenged at the pre-execution stage if the circumstances disclose that the order is unsustainable in law. The petitioner also relied on the Supreme Court’s judgment in Deepak Bajaj v. State of Maharashtra, which held that where a detenue approaches the court at the pre-execution stage and demonstrates that the detention order is ex facie illegal, the court should not compel the detenue to first undergo detention only to be released later upon quashment.

How the Court Reasoned

Justice Parihar accepted both grounds urged by the petitioner.

On the staleness of the grounds, the court noted that the last FIR relied upon by the respondents pertained to the year 2015. The record was, in the court’s words, “conspicuously silent” as to the status of those cases — whether the petitioner had been arrested, whether he had been enlarged on bail, or whether any further unlawful conduct was attributed to him thereafter. From 2015 until the passing of the detention order in April 2022, no material had been placed on record demonstrating involvement of the petitioner in any activity prejudicial to public order or State security.

The allegation that Bhat had compelled shopkeepers to observe hartal calls was found to be vague and unsupported by any proximate material indicating such activity after 2015 or immediately prior to the issuance of the detention order. The court acknowledged that such allegations, if substantiated, could be serious, but held that there must exist a live and proximate link between the alleged activities and the order of preventive detention. That link was entirely absent on the face of the record, with a gap of approximately seven years between the last alleged criminal activity and the detention order.

On the question of mechanical preparation of the dossier, the court observed that FIR No. 28/2022 of Police Station Maisuma did not even find mention in the dossier that formed the basis of the preventive action. This indicated that the dossier had been prepared in a casual and mechanical manner, without due regard to the genuineness or relevance of the material relied upon.

The court drew a pointed inference from the sequence of events. Bhat had applied for anticipatory bail in FIR No. 06/2015, FIR No. 28/2022 and FIR No. 60/2008 in 2022, and interim protection had been granted in his favour. It was only after those anticipatory bail applications were filed, and reports were called for from the concerned police stations, that the respondents appear to have initiated the preventive detention proceedings. The court found that the detention order appeared to have been passed in a routine and mechanical manner solely to prevent the petitioner from obtaining anticipatory bail in the earlier FIRs.

On the unexplained delay in execution, the court applied the ratio from Attaullah Malik. In that case, the detenue had already been arrested and was in police custody when the detention order was passed, yet it was not executed despite the detenue being readily available. The coordinate bench had noticed an unexplained delay of more than ten months and held that such inaction cast serious doubt on the genuineness of the subjective satisfaction of the detaining authority, reflecting slackness and remissness on the part of the authorities.

In Bhat’s case, the detention order was passed on 08.04.2022 and remained unexecuted until the court stayed its operation on 04.04.2023. The respondents offered no explanation for why no steps were taken to execute the order during that period. It was not even their case that Bhat had absconded, gone underground or evaded arrest. The record suggested that the detention order remained only on paper and was never seriously sought to be implemented. Bhat appears to have learnt of the detention order’s existence and filed the present petition on 15.03.2023.

The court referred to the Supreme Court’s judgment reported at 2000 (2) SCC 360, also relied upon by the coordinate bench in Attaullah Malik, which settled that the detaining authority must satisfactorily explain inordinate delay in execution of a detention order, failing which the subjective satisfaction stands vitiated. The respondents were unable to furnish any satisfactory explanation even when confronted during the hearing.

The court held that the unexplained delay in execution of the warrant vitiated the subjective satisfaction of the detaining authority, and this conclusion was reinforced by the complete absence of any live and proximate link between the petitioner’s alleged prejudicial activities and the detention order passed in April 2022.

Order

Justice Sanjay Parihar quashed detention order No. DMS/PSA/27/2022 dated 08.04.2022. The writ petition was allowed. The court directed that the record be returned.