The High Court of Jammu & Kashmir and Ladakh, reinforcing the procedural safeguards enshrined in the Constitution, has quashed the preventive detention (PSA) order passed by the District Magistrate, Doda, on 10 April 2025 against Mohd. Rafi alias Pinka and directed his immediate release. The order was passed by a single bench of Justice Vinod Chatterji Koul, accepting the petition filed by Rafi’s wife, Parveena Begum.
The Court held that the administration’s failure to consider his representation in a timely manner is a serious violation of the protection provided under Article 22(5) of the Constitution.
Referring to Showkat Ali vs. UT of J&K judgment, the Court ruled that
“………….grounds of detention must lay down specific charge against detenu rather than unsubstantiated and unverifiable allegations. If grounds of detention are based on unsubstantiated allegations, the same, along with the order of detention can be quashed………”
The Court further added in the order that if the presence of the accused is not required in any other matter, he should be immediately released from District Jail, Udhampur. According to the case, the order issued under Section 8 of the Jammu & Kashmir Public Safety Act, 1978 (PSA) detained Rafi, a laborer by profession, citing him as a ‘threat to public order’ on the basis of a police dossier. The dossier referred to four FIRs and other reports, out of which he had been acquitted in three cases, while investigation in the fourth was ongoing. Accordingly, the petitioner challenged the detention order through the present petition.
Advocate Rahul Raina, representing the petitioner, informed the Court that the impugned order was issued only in English, while the accused’s language is Urdu and Kashmiri, which caused difficulty in preparing an effective representation. The charges against the accused were vague and baseless. Moreover, even after government approval on 16 April 2025, the District Magistrate rejected the accused’s representation on 1 May 2025, whereas after government approval, the District Magistrate has no power to reject the representation.
Considering the arguments of the petitioner’s counsel, the Court said:
“……………..whenever District Magistrate receives a request from police along with dossier to detain an individual, he must examine charge by referring to material accompanying the police dossier which would at least prima facie substantiate the charge against detenu, besides, the charge against individual must be substantial and not fanciful or imaginary…………….”
On examining the case, the Court noted that Rafi’s criminal tendencies and his activities described in several reports posed a threat to public order, and therefore the preventive action was justified. However, on perusal of the record , the Court found serious procedural lapses.
With reference to the Supreme Court case Ankit Ashok Jalan v. Union of India, the Court pointed out the principles regarding the roles of the Government and Advisory Board in considering representations, stating that both are ‘qualitatively different’ and must make ‘independent and prompt’ judgements. The Court made clear that after approval by the State Government under Section 8(4) of the PSA, the District Magistrate has no authority to refuse the representation. This power rests solely with the government , as provided under Section 19(1) of the PSA. The Court emphasized the essentiality of prompt and uninfluenced disposal of the representation at every stage.
The Court also made reference to another Supreme Court case, Jahangir Khan Fazalkhan Pathan v. Police Commissioner, Ahmedabad , stating that orders issued on vague and indefinite allegations render the right to representation ‘delusory’.
The Court specifically viewed that, “To detain a person only based on allegations without there being any material to substantiate those allegations would imperil the fundamental right of the individual enshrined in article 21 of the Constitution.”
Finally, after considering other aspects, the Court concluded that the detention order was from the outset null, inconsistent, and illegal, with procedural lapses by the administration at multiple levels. Such an order is liable to be quashed.
Case: Mohd. Rafi alias Pinka vs The Union Territory of Jammu and Kashmir and Others
