In a significant ruling underscoring the importance of procedural safeguards and constitutional rights, Justice Mohd. Yousuf Wani of the Jammu & Kashmir and Ladakh High Court quashed the preventive detention of Mohd. Azam under the Jammu and Kashmir Public Safety Act (PSA), 1978. The court held that the detention order lacked an independent application of mind by the detaining authority and criticized the reliance on outdated and unverified police reports.
Case Background
The case revolved around the detention of Mohd. Azam, a 50-year-old resident of Wand Mohra, Pukharni, in Rajouri district, who was accused of actions deemed prejudicial to public order. The detention order, issued on January 30, 2024, by the District Magistrate, Rajouri, cited five criminal cases spanning from 2013 to 2021 as grounds for the detention. However, the petitioner, through his counsel Advocate Arshad Majid Malik, argued that four of these cases had been disposed of years before the detention order was passed.
The petitioner, represented in court by his nephew Sajjad Hussain, further alleged that the grounds for detention, along with supporting documents, were neither provided in full nor translated into a language he could understand. This, he argued, deprived him of the right to make an effective representation as mandated by Article 22(5) of the Constitution of India.
The government, represented by Additional Advocate General Rajesh Thappa, defended the detention, claiming it was necessary to prevent Azam from engaging in activities that threatened public order. The authorities maintained that procedural requirements under the PSA were duly followed, and the detention was a preventive measure necessitated by Azam’s history of repeated offenses.
Legal Issues
The court was tasked with examining several key legal and procedural aspects of the case:
1. Non-Application of Mind: The court noted that the grounds for detention were a word-for-word copy of the dossier submitted by the Superintendent of Police. Justice Wani criticized the detaining authority for failing to apply its independent judgment, which is a mandatory requirement under preventive detention laws.
2. Proximity of Offenses: The court highlighted the lack of proximity between the last alleged offense (registered on April 8, 2021) and the detention order issued nearly three years later. Justice Wani pointed out that preventive detention requires a live link between past conduct and the apprehended threat, which was absent in this case.
3. Procedural Safeguards: The judgment stressed that Azam was not furnished with the complete set of documents relied upon for the detention order. Additionally, the authorities failed to explain the grounds of detention in Gojri, a language he understood, which violated his fundamental rights under Article 22(5).
4. Non-Consideration of Representation: The petitioner had submitted a representation challenging the detention order, which was allegedly ignored by the authorities. The court emphasized that such omissions render detention orders legally unsustainable.
Court Observations
Justice Wani made several significant observations, reiterating the constitutional principles governing preventive detention. Citing the Supreme Court’s ruling in Jai Singh v. State of J&K (1985), he observed:
“The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent, and routine manner.”
He further emphasized the need for procedural fairness:
“Preventive detention is a jurisdiction of suspicion, and its exercise must be accompanied by meticulous compliance with procedural safeguards.”
The court also underscored that preventive detention laws must be invoked only when ordinary penal laws are insufficient to address the threat posed by an individual. In the present case, the delay in invoking detention, coupled with reliance on outdated cases, demonstrated a lack of necessity and proportionality.
Judgment
The court quashed the detention order, terming it “bereft of fairness and accuracy.” Justice Wani directed the immediate release of Mohd. Azam, stating that his continued detention violated constitutional protections under Articles 21 and 22. The court’s decision was based on the following findings:
1. The detaining authority failed to independently assess the necessity of detention and relied entirely on a police dossier.
2. The materials supporting the detention were neither furnished nor explained to the detenu in his native language.
3. There was an unexplained delay in issuing the detention order after the last alleged offense, severing the necessary causal link.
4. The petitioner’s representation was not considered, contravening constitutional requirements.
Justice Wani concluded with a cautionary note on the exercise of preventive detention powers, asserting that such measures must be applied judiciously and sparingly, in strict conformity with constitutional and statutory provisions.
Case Details
– Case Title: Mohd. Azam v. Union Territory of J&K and Others
– Case Number: HCP No. 27/2024
– Bench: Justice Mohd. Yousuf Wani
– Petitioner’s Counsel: Mr. Arshad Majid Malik
– Respondent’s Counsel: Mr. Rajesh Thappa, Additional Advocate General
