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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
RAHUL BHARTI, J.
Tarun Bahl Son Of Sh. V. K. Bahl - Appellant
Versus
Union Territory Of J&k Through Principal Secretary, Home Department - Respondent
HCP No. 138 of 2024
Decided On : 02-01-2025
(A) Jammu & Kashmir Public Safety Act, 1978 - Section 8 - Preventive detention - The petitioner challenged the preventive detention order No. PSA-30 of 2024, asserting it was a perversion of legal authority to curtail personal liberty and circumvent judicial processes. The detention was based on allegations of leaking confidential information and involvement in multiple FIRs, but the court found the detention order lacked substantive grounds and was malice-oriented. (Paras 2, 3, 25, 40)
(B) Writ Jurisdiction - Article 226 of the Constitution of India - The court emphasized the importance of personal liberty and the need for strict adherence to procedural safeguards in preventive detention cases, citing the Supreme Court's stance on the potential for abuse of such laws. (Paras 37, 38)
(C) Representation Rights - Article 22 of the Constitution of India - The court noted the failure of authorities to communicate the rejection of the petitioner's representations against detention, highlighting the obligation to inform the detenue of such decisions. (Paras 32, 33)
Facts of the case:
The petitioner was detained under the Jammu & Kashmir Public Safety Act, 1978, following allegations of leaking confidential information and involvement in multiple FIRs. The detention order was challenged on grounds of illegality and malice.
Findings of Court:
The court found the detention order to be illegal and malice-afflicted, warranting its quashment and the immediate release of the petitioner.
Issues: The main issues included the legality of the preventive detention order and the adequacy of grounds for detention.
Ratio Decidendi: The court ruled that the preventive detention was based on insufficient grounds and procedural lapses, emphasizing the need for strict compliance with legal standards in such cases.
Result: The preventive detention order was quashed, and the petitioner was ordered to be released immediately.
JUDGMENT :
1. Heard learned counsel for the petitioner as well as for the respondents. Perused the pleadings of both sides and also the scanned detention record produced at the end of the respondents.
2. The case in hand is an exhibit of a preventive detention measure under the aegis of J&K Public Safety Act, 1978 being resorted to as a perverted detention by the District Police and District Executive Magistracy as an extra legal expedience not only to curb fundamental right to personal liberty of the petitioner but also a stratagem to outmaneuver the constitutional and criminal courts indulgence in the matter of granting bail in favour of the petitioner thereby to show off that the fiat of Police and dictate Executive outruns the writ and commands of the constitutional and criminal court.
3. The petitioner, acting through his wife, has petitioned this Court invoking writ jurisdiction under article 226 of the Constitution of India for seeking a writ of habeas corpus for the purpose of retrieving and restoring the personal liberty of the petitioner which he has come to lose by virtue of detention order No. PSA-30 of 2024 dated 05.09.2024 passed by the respondent No. 2 – District Magistrate, Jammu purportedly acting under section 8 of the Jammu & Kashmir Public Safety Act, 1978.
4. The petitioner came to be arrested and detained on 06.09.2024 in execution of warrant of arrest with respect to detention Order No. PSA-30 of 2024 dated 05.09.2024 and kept and lodged in the confines of the Central Jail Kot Bhalwal, Jammu. The fact of arrest of the petitioner came to be confirmed by the Sr. Superintendent, Central Jail, Kot Bhalwal vide his letter No. 175/CJJKB-4684-89 dated 06.09.2024 to the Pr. Secretary, Home Department, UT of J&K.
5. There are two factual facets with respect to purported exercise attending the questioned preventive detention of the petitioner.
6. This Court would first deal with the factual facet with which the petitioner came to be confronted and acquainted but without any scope for the petitioner to know and plead about the other factual facet preceding his preventive detention about which he remained uninformed and unapprised.
7. First factual facet is that an accusation to an effect that the petitioner has allegedly publicized and published a purported confidential information relating to the deliberations of the State Level Committee with respect to the review and assessment of security cover relatable to high profile persons, several bureaucrats and politicians in the UT of Jammu & Kashmir, an FIR No. 0080/2024 dated 07.07.2024 for alleged commission of offences under section 3/5 of the Officials Secrets Act, 1923 read with section 353/49 of Bharatiya Nyaya Sanhita (BNS), 2023 came to be registered by the Police Station Channi Himmat, Jammu naming the petitioner as known accused and other unknown person/s which led to the immediate arrest of the petitioner on next day of 08.07.2024 by the Police Station Channi Himmat Jammu.
8. Operating on the repeat factual reference, a second FIR No. 0048/2024 dated 08.07.2024 came to be registered by the Police Station Shergarhi, Srinagar for alleged commission of offences under section 5(4) of Official Secrets Act, 1923, section 72 of IT Act, 2000 & section 198 of Bharatiya Nyaya Sanhita (BNS), 2023 though against an unknown person for leaking out so called confidential minutes of meeting of State Level Committee.
9. The petitioner came up with a bail petition Bail App No. 157/2024 filed on 16.07.2024, with respect to his arrest taking place in FIR No. 0080/2024, before this Court wherein by virtue of an order dated 22.07.2024 he came to be admitted on interim bail. This bail petition is pending as on date before this Court for final disposal.
10. In addition to the petitioner’s implication in said two FIRs, the petitioner also got named as accused in FIR No. 143/2024 dated 22.07.2024 under section 420 Indian Penal Code (IPC) with the Police Station Gandhi Nagar Jammu on having al
Preventive detention under the Jammu & Kashmir Public Safety Act was found illegal due to lack of substantive grounds and procedural violations, emphasizing the protection of personal liberty.
The distinction between law and order and public order is crucial in cases of preventive detention, and the impact on the community must be considered. The failure to respond to the petitioner's repr....
The court held that preventive detention requires substantiated and lawful justifications, ruling against arbitrary state authority.
Preventive detention must be justified by clear grounds and cannot serve punitive purposes; failure to differentiate factual basis renders detention illegal.
Preventive detention orders must have a clear link to recent activities; failure to disclose essential facts renders such orders illegal.
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