High Court Quashes PSA, Citing ‘Stale’ Allegations, Delay in Execution Vitiate Detention | Kashmir Life

SRINAGAR: The High Court of Jammu Kashmir and Ladakh has quashed a preventive detention order issued under the Public Safety Act (PSA) against Srinagar resident Umar Nazir Bhat, holding that the authorities failed to establish any “live and proximate link” between the alleged activities and the detention order passed in 2022.

Justice Sanjay Parihar passed the order while allowing a criminal writ petition challenging detention order No. DMS/PSA/27/2022 dated April 8, 2022, issued by the District Magistrate Srinagar under the Jammu and Kashmir Public Safety Act, 1978.

The petitioner had approached the court before execution of the detention order, contending that the allegations against him were based on old FIRs and that the order had remained unexecuted for over a year.

“The grounds of detention, on the face of the record, appear stale and lacking in immediacy,” the court observed, noting that the last FIR relied upon by the authorities pertained to the year 2015 while the detention order was issued in April 2022.

The court further held that the authorities failed to explain why the detention order was not executed between April 2022 and April 2023, when the High Court stayed its operation.

“It is not even their case that the petitioner had absconded, gone underground or otherwise evaded arrest,” the court said, adding that the record suggested the detention order “remained only on paper and was never seriously sought to be implemented.”

The petitioner, through counsel M Ashraf Wani, argued that he had been falsely implicated in multiple FIRs registered at Police Station Maisuma and had either never been arrested or had secured anticipatory bail in those cases. He contended that no prejudicial activity had been attributed to him after 2015 and that the detention order had effectively become redundant with the passage of time.

The Union Territory administration, represented by assisting counsel Harris Khan for Senior AAG Mohsin Qadiri, defended the detention, arguing that preventive detention is intended to prevent activities prejudicial to public order and security of the State, and not to punish past conduct. The respondents maintained that 23 FIRs registered against the petitioner between 2009 and 2015 justified the detaining authority’s “subjective satisfaction.”

According to the detention record produced before the court, the Senior Superintendent of Police Srinagar had submitted a dossier on April 7, 2022, following which the District Magistrate ordered the petitioner’s detention under Section 8 of the PSA and directed his lodgement initially in Central Jail Kot Bhalwal, Jammu, later shifted to Central Jail Srinagar through a corrigendum.

The grounds of detention accused the petitioner of involvement in stone-pelting incidents, unlawful assemblies and activities allegedly aimed at disturbing public order and promoting secessionist tendencies in Kashmir.

However, the court found that the respondents had failed to place any material on record showing the petitioner’s involvement in unlawful activities after 2015.

“While such allegations, if substantiated, may indeed be serious in nature, there must nevertheless exist a live and proximate link between the alleged activities and the order of preventive detention,” the court said.

Justice Parihar also noted that the authorities appeared to have initiated preventive detention proceedings only after the petitioner sought anticipatory bail in some FIRs.

“The impugned order, therefore, appears to have been passed in a routine and mechanical manner solely to prevent the petitioner from obtaining anticipatory bail in the earlier FIRs,” the court observed.

Relying on earlier judgments including Deepak Bajaj v. State of Maharashtra and a coordinate bench ruling in Attaullah Malik v. UT of JK, the court reiterated that preventive detention orders can be challenged even at the pre-execution stage where the order appears ex facie illegal.

Quashing the detention order, the court held: “The unexplained delay in execution of the warrant of detention vitiates the subjective satisfaction of the detaining authority.”

The petition was accordingly allowed and the PSA detention order set aside