Court’s Decision
The Jammu & Kashmir High Court quashed the preventive detention order dated 17 January 2025 issued under Section 8(1)(a) of the J&K Public Safety Act against the petitioner, directing immediate release unless required in other cases. The Court held that the detention order was illegal due to:
1. Reuse of identical grounds and FIRs that had led to earlier detention orders quashed by the Court without fresh or supervening circumstances.
2. Failure to communicate to the detenu his right to make representation to the detaining authority, violating Article 22(5) of the Constitution.
Facts
The petitioner, detained under the J&K Public Safety Act on 17 January 2025, was alleged to have been involved in multiple FIRs related to attempt to murder, abduction, assault, arson, and bovine smuggling. The authorities justified the detention citing the petitioner’s repeated criminal activities as threats to public order. The petitioner contended that the detention order was illegal, being the third detention order passed on the same FIRs, earlier orders having been quashed by the High Court, and that no fresh grounds existed to justify continued preventive detention. Additionally, the petitioner argued that he was not informed of his right to make representation to the detaining authority, violating constitutional safeguards.
Issues
- Whether a preventive detention order can be sustained when based on the same FIRs and materials as earlier quashed detention orders without any fresh or supervening circumstances.
- Whether the detention was illegal due to non-communication of the petitioner’s right to represent to the detaining authority.
- Whether repeated preventive detention was justified despite availability of ordinary criminal law remedies.
Petitioner’s Arguments
The petitioner argued:
- The detention order relied on the same FIRs and grounds as earlier detention orders quashed by the High Court in 2020 and 2024, with no fresh facts to justify a new detention order.
- Preventive detention under PSA was being misused to force eviction in a civil land dispute, indicatang mala fide intent.
- The authorities failed to inform the petitioner of his constitutional right to make an effective representation to the detaining authority.
- Preventive detention was not justified when ordinary criminal law remedies could address the alleged offences.
Respondent’s Arguments
The respondents argued:
- The petitioner was a habitual offender, repeatedly engaging in serious criminal activities endangering public peace and communal harmony.
- Preventive detention was necessary to prevent the petitioner from re-engaging in criminal activities.
- Procedural safeguards were followed, and the petitioner was provided relevant documents and informed of his right to represent to the government.
However, the respondents could not dispute that the FIRs used as grounds were the same as those in earlier quashed detention orders.
Analysis of the Law
The Court analysed:
1. The law that fresh or supervening circumstances are required to justify subsequent detention orders if earlier detention orders are quashed (as held in Chhagan Bhagwan Kahar v. N.L. Kalna (1989) 2 SCC 318).
2. Article 22(5) of the Constitution, which mandates informing the detenu of their right to make representation to the detaining authority (State of Maharashtra v. Santosh Shankar Acharya (2000) 7 SCC 463).
3. The Supreme Court’s ruling in Ameena Begum v. State of Telangana (2023) 9 SCC 587, holding that reusing the same antecedents in fresh detention orders without a direct nexus with immediate detention needs is unsustainable.
Precedent Analysis
- Chhagan Bhagwan Kahar v. N.L. Kalna (1989) 2 SCC 318 – Held that once a detention order is quashed, a subsequent order on the same grounds is invalid unless based on fresh facts.
- Ameena Begum v. State of Telangana (2023) 9 SCC 587 – Reiterated that detention orders cannot rely on stale grounds previously invalidated without fresh material.
- State of Maharashtra v. Santosh Shankar Acharya (2000) 7 SCC 463 – Held that non-communication of the right to represent to the detaining authority violates Article 22(5) and vitiates the detention.
These cases collectively established that the petitioner’s detention was unconstitutional due to the lack of fresh grounds and procedural lapses.
Court’s Reasoning
The Court found:
- The FIRs cited in the detention order were the same as those in earlier detention orders already quashed, with no fresh incidents to justify a new detention.
- Preventive detention cannot be sustained on stale grounds and is a grave restriction on personal liberty requiring strict adherence to legal safeguards.
- The petitioner was not informed of his right to make representation to the detaining authority, violating Article 22(5), and this omission was not a mere procedural formality but a fundamental flaw.
- The alleged threat to public order did not justify detention when the ordinary criminal process was adequate to address the petitioner’s activities.
Conclusion
- The High Court quashed the preventive detention order dated 17 January 2025 under the J&K Public Safety Act.
- Directed the immediate release of the petitioner unless required in any other case.
- Held that the detention was illegal due to reuse of the same grounds without fresh circumstances and failure to communicate the right to representation.
Implications
- Reinforces that preventive detention is an exceptional power requiring strict procedural compliance and cannot be used arbitrarily.
- Clarifies that fresh grounds are mandatory for re-detention if earlier detention orders are quashed.
- Ensures constitutional safeguards under Article 22(5) remain effective in protecting individual liberty.
Short Note on Referred Cases
- Chhagan Bhagwan Kahar (1989) – Subsequent detention requires fresh facts if earlier orders are quashed.
- Ameena Begum (2023) – Using the same antecedents without fresh nexus invalidates detention.
- Santosh Shankar Acharya (2000) – Non-communication of representation rights vitiates detention.
These cases directly supported the petitioner’s challenge and guided the High Court’s reasoning.
FAQs
- Can preventive detention be based on the same grounds after earlier orders are quashed?
No, fresh or supervening circumstances are mandatory for re-detention if earlier detention orders on the same grounds have been quashed.
- What happens if a detenu is not informed about their right to represent to the detaining authority?
The detention becomes unconstitutional under Article 22(5) and is liable to be quashed.
- Why did the J&K High Court quash the preventive detention in this case?
The detention was quashed for relying on the same grounds as earlier quashed orders without fresh facts and for not informing the detenu of the right to represent.
