Introduction:
In the case titled Sher Mohd Vs UT of J&K, citation 2025 LiveLaw (JKL) 194, the Jammu and Kashmir and Ladakh High Court at Jammu, presided over by Justice Sanjay Dhar, upheld the preventive detention of Sher Mohd, a resident of Kishtwar, under the Jammu and Kashmir Public Safety Act, 1978. The detention order was challenged through a habeas corpus petition filed by the detainee’s wife, Famida Begum, primarily on the grounds of procedural lapses, including non-supply of vital documents and lack of application of mind by the detaining authority. The petition was ultimately dismissed, with the Court finding no merit in any of the contentions raised.
Arguments:
The petitioner, Famida Begum, wife of Sher Mohd, contended that her husband had been unlawfully detained under the Jammu and Kashmir Public Safety Act, 1978, without being provided the opportunity to make an effective representation against the detention. She argued that the order of detention was passed arbitrarily and without proper application of mind. One of the major grounds put forward was the alleged non-supply of critical documents such as 16 daily diary reports, which formed the basis of the detention order. It was claimed that the failure to provide these documents effectively disabled the detainee from preparing a proper defence, thereby violating his fundamental right under Article 22(5) of the Constitution of India. The petitioner further argued that since the detainee had already been arrested and subsequently granted bail in a criminal case under Sections 196 and 299 of the Bharatiya Nyaya Sanhita (BNS) for allegedly slaughtering a calf, the preventive detention lacked necessity and constituted a misuse of administrative power. It was also submitted that the rejection of the representation made by the detainee was never communicated with reasons, rendering the action procedurally flawed and constitutionally impermissible.
The respondents, primarily represented through the District Magistrate (Respondent No. 2), countered the allegations by asserting that the detention order was based on credible material that indicated the involvement of the detainee in activities prejudicial to the maintenance of public order. The respondents highlighted that the incident of bovine slaughter by the detainee had inflamed religious sentiments of a particular community, leading to widespread communal unrest and protests across different police jurisdictions in Kishtwar. These events necessitated immediate preventive action to preserve communal harmony and law and order. It was further contended that all necessary procedural safeguards were followed, including the service of the detention order, grounds of detention, and supporting documents. The dossier served to the detainee, comprising 35 pages, included not just the detention order and grounds but also the FIR and the 16 daily diary reports cited by the petitioner. On the matter of rejection of representation, the respondents stated that the law does not require the detaining authority to communicate the reasons for such rejection to the detainee.
Judgement:
After perusing the entire record and hearing the submissions of both sides, the High Court dismissed the petition, holding the detention legally valid and procedurally sound. Justice Sanjay Dhar observed that the grounds of detention mentioned the communal tension and law-and-order disturbances that had followed the release of the detainee on bail. He emphasised that preventive detention is not meant to punish a person for a past offence but to prevent him from engaging in future activities that could disturb public order. The Court noted that while the detenu had indeed been granted bail in the criminal case, his subsequent conduct, and the grave consequences it had on public peace, justified the subjective satisfaction of the detaining authority to resort to the PSA.
About the alleged non-supply of daily diary reports, the Court meticulously reviewed the execution report and found that the detainee had received a comprehensive dossier, including all relevant documents. It was observed that the details of the daily diary entries were extensively summarised in the grounds of detention and thus, the detenu was not denied his right to representation. Justice Dhar rejected the contention of non-application of mind by pointing out that the detaining authority had taken into consideration the severity and implications of the detainee’s actions and had applied due diligence before issuing the order.
As for the grievance regarding the non-communication of reasons for rejection of the representation, the Court reiterated the settled legal position that there is no statutory obligation on the detaining authority to convey the reasons behind such a decision. It was held that the representation had been considered and rejected within the stipulated time frame and thus, there was no procedural infirmity in this regard.
In conclusion, the High Court held that the preventive detention order did not suffer from any illegality or irregularity and was based on legitimate grounds. It found the subjective satisfaction of the detaining authority to be well-founded, keeping in mind the potential for further communal unrest that could arise from the detainee’s activities. The writ petition filed by the wife of the detainee was thus found to be devoid of any merit and was accordingly dismissed.