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High Court quashes PSA against Kupwara man for second time

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High Court quashes PSA against Kupwara man for second time

SRINAGAR: The High Court of Jammu & Kashmir and Ladakh held that every case in which the law enforcement agencies seek a preventive detention of a citizen of India, every such case demands and expects a very fact sensitive and law centric application and approach of mind on the part of and by the holders of preventive detention jurisdiction.

Quashing a Public Safety Act (PSA) detention order second time against a Kupwara resident, Javaid Ahmad Bhat, a single bench of Justice Rahul Bharti said that an application of law lives in its seriousness, and “the law detests non-seriousness on the part of law operating hands and minds. The preventive detention law is no exception to this demand and command.”

The court noted that the detenue, who was “painted and portrayed” as an aide of Lashkar-e-Taiba (LeT) outfit by the detaining authority, was subjected to suffer preventive detention a second time merely one year after a previous detention order passed in 2019 against him was quashed.

Underscoring that for the period intervening the date of quashing of first detention order on June 28, 2021 and the issuance of second preventive detention order on June 24, 2022, Justice Bharti said there is no factual content stated in the dossier by the Superintendent of Police (SP) Handwara on the basis of which the petitioner could be said to have indulged in acts of omission or commission whereby his personal liberty was reckoned as a circumstance posing live threat to the “so called security of the State.”

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Thus, the court noted, the dossier served by the SP Handwara before the District Judge Kupwara was nothing but repetition of the premise upon which the first detention order of 2019 was passed.

The bench underscored that post his release by quashment of first detention order which had made the petitioner to suffer stay behind the jail bars for a period of four months short of two years, the petitioner was put on a bond for keeping peace by reference to proceedings under section 107/151 of the Code of Criminal Procedure 1973.

Justice Bharti pointed out that in the dossier it is nowhere mentioned that the petitioner ever breached his bonds so given under section 107 of the Code of Criminal Procedure, 1973 and still the petitioner came to be branded as a case for detention under the PSA, 1978.

The court held that the present case is an example of sheer “non-seriousness” on the part of the District Magistrate Kupwara in dishing out a preventive detention order against the petitioner by literally acting as a “post-office” as if delivering a dossier of the SP Handwara asking for the preventive detention of the petitioner under the provisions of the J&K PSA, 1978.

“When it came to the matter of applying mind to the issue whether to subject the petitioner to suffer preventive detention upon the basis of the dossier so served by the SP, Handwara before him, the District Magistrate Kupwara seems to have relieved himself from labor and effort of independent application of mind to the dossier case put up by the SP and instead the District Magistrate Kupwara simply carried out re-typing of the dossier in the name of showing so called application of mind,” the court noted.
The bench said that this is the best exhibit of the “mechanical application of mind” on the part of the District Magistrate Kupwara in issuing the preventive detention order against the petitioner as if the matter of depriving a person of his personal liberty, which being a fundamental right under the Constitution of India, is a matter of “pleasure” for the authority seeking preventive detention and the authority granting the said preventive detention.

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