J&K High Court Quashes PSA Detention, Says Preventive Detention Can't Replace Criminal Law

The Jammu & Kashmir and Ladakh High Court has quashed a Public Safety Act (PSA) detention order against a Srinagar resident, ruling that preventive detention cannot be used as a substitute for ordinary criminal law.

Justice M A Chowdhary, in a judgment delivered on September 17, held that the extraordinary power of preventive detention cannot be exercised merely because authorities harbour a general apprehension about a person's antecedents. There must be material from which a rational prognosis of future prejudicial conduct can be made, the court said.

The petitioner, Zubair Altaf Sheikh, a resident of Soura in Srinagar, was booked under the PSA in September last year, primarily on the basis of an FIR registered against him in 2022. He had been granted bail in that case, and an earlier PSA detention order against him in 2022 was also quashed by the court.

Counsel for the respondents argued that the fresh detention order was not founded merely on the 2022 FIR but rested on a fresh dossier containing additional material and inputs received through discrete sources. The court declined to accept this submission.

Justice Chowdhary observed that while an antecedent may be referred to for a limited purpose, if it is relied upon to conclude that a detainee continues to pose a threat to the security of the State, it must have a live and proximate nexus with the present necessity of detention.

The court noted that the discreet police records corresponded to a period when the petitioner was working in Delhi as a store manager with Blinkit. His assertion that he was in Delhi in connection with his employment remained unrebutted, and he had placed on record documents showing he was in the Gurugram NCR region and had received wages for the period covered by the discreet reports.

While employment elsewhere cannot by itself negate allegations of prejudicial activity, the court said it was nevertheless a relevant circumstance that the detaining authority should have considered when assessing whether a continuing and immediate threat warranted preventive detention.

Referring to the quashing of the earlier PSA order in April 2024, the court said that judicial development was a material circumstance that necessarily required consideration while assessing the present detention. The detaining authority could not mechanically revive the earlier narrative without demonstrating how subsequent material overcame the passage of time and established a fresh and continuing threat.

Citing Supreme Court judgments, Justice Chowdhary reiterated that the underlying principle in preventive detention cases is the existence of a live and proximate link between the grounds of detention and the confirmed purpose of detention, and that an unexplained delay can snap such a link and render the subjective satisfaction vulnerable.

The court further held that a mere description of a person by a particular label, without particulars of the acts constituting the alleged prejudicial conduct, cannot furnish an adequate basis for preventive detention. The constitutional requirement is that the grounds must be sufficiently specific to enable the detainee to understand and effectively meet the allegations.

In the present case, the court concluded that the 2022 FIR, viewed against the subsequent quashing of the earlier PSA order, the passage of nearly three years, the unrebutted assertion regarding the detainee's employment in Gurugram, and the absence of specific contemporaneous acts attributable to him, could not by itself furnish the requisite live link.