Srinagar: The High Court of J&K and Ladakh has held that it (court) has limited scope in scrutinizing the detention orders under Public Safety Act (PSA) and that it cannot examine sufficiency of material.
A division bench comprising Chief Justice N Kotiswar Singh and Justice Moksha Khajuria Kazmi said “this court in proceedings under Article 226 of the Constitution has limited scope to scrutinize whether detention order has been passed on material placed before it; it cannot go further and examine sufficiency of material”.
The pronouncement was made in an appeal against a single bench judgment that dismissed a petition challenging the PSA by District Magistrate Kulgam on July 25, 2022 against Yawar Ahmad Malik, a 25-years-old man of Wedow Mishipora Qaimoh.
The detention order was agitated on the ground that “the allegations/grounds of detention are vague, mere assertions of the detaining authority and non-existent and no prudent man can make an effective representation against these allegations”.
The petition said, “the detaining authority has not prepared the grounds of detention by itself, which is prerequisite for him before passing any detention order. The grounds of detention are replica of the police dossier and clearly depict the non-application of mind by the detaining authority”.
The single judge bench in 2023 had dismissed the petition saying “the detaining authority was well within its jurisdiction to pass the order of detention once it found that the activities of the petitioner are prejudicial to the security of the State”.
The appellant appealed against the judgment saying that the single bench has not considered the grounds of challenge pleaded in the petition by the appellant.
“Not even single ground has been considered while passing the judgment and that the judge has not returned the finding with respect of the breach of constitutional and legal safeguards, available to the detenue, by the detaining authority/ respondents while passing the detention order against the appellant (detenue)”, read his appeal.
The Deputy Advocate General appearing on behalf of respondent authorities submitted that the activities of the detenue were found prejudicial to the security of the State and it was on this count that the police recommended the preventive detention of the detenue.
The division bench after perusing the records and hearing the arguments and the counters said “the detaining authority has ample powers to detain individuals under preventive detention after deriving satisfaction about their activities if prejudicial to the security of the State.
“Since the detenue is alleged to have indulged in activities prejudicial to the security of the State, substantiated by the records, therefore, he does not need any concession,” it said.
The bench said “this court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant.”
It continued “this court can only examine grounds disclosed by the government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent detenu from engaging in activities prejudicial to security of the State or maintenance of public order.”
