The J&K and Ladakh High Court has quashed the detention of former police constable Jaffer Hussain Butt under the Public Safety Act (PSA), saying the detaining authority had not applied its mind while passing the directing order. The court also said the likelihood that an “under-trial prisoner was likely to get bail” was not ordinarily grounds for preventive detention. Justice Vinod Chatterji Koul ordered Butt’s release if he is not otherwise required in any other case. A constable of the Jammu and Kashmir Police, Butt had been dismissed from service in September 2021 for alleged terror links. He was later detained under PSA, following orders from the Kishtwar District Magistrate. The detention order was prepared by the District Magistrate based on a dossier submitted by Kishtwar’s Senior Superintendent of Police, who referred to the registration of an FIR at Kishtwar police station, accusing Butt of providing his vehicle to two militants. As per the dossier, militants Osama Bin Javid and Zahid Hussain had visited Butt’s house on March 8, 2019. It is alleged that he did not inform the police about the matter and instead lodged a false complaint that his vehicle had been stolen. He was also accused of providing a fake registration number for the car, the dossier said. Butt’s name had also figured during investigations by the National Investigation Agency (NIA) into the killing of an RSS leader, Chanderkant Sharma, and his PSO by terrorists in Kishtwar district hospital. He was arrested after the registration of an FIR on October 8, 2019, but was released on bail later as the NIA failed to present the challan against him in court within the mandatory 180 days. Setting aside the order detaining Butt under PSA, Justice Vinod Chatterji Koul observed, “The grounds of detention in this case are, in fact, a replica of the dossier with interplay of some words here and there. This exhibits non-application of mind…” The court observed that the detaining authority cannot simply reiterate what is written in the dossier, but must apply its own mind while formulating the grounds for detention. The court also observed that the detaining authority was apprehensive of the detenu getting bail and subsequently committing criminal activities. “If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised,” the judge observed, adding, “Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail, an order of preventive detention should not ordinarily be passed.”
