12 FIRs, security concerns: Why Jammu and Kashmir and Ladakh High Court upheld detention of surrendered militant

Justice Rajesh Sekhri dismissed the man’s plea on February 26.

The order added that the detaining authority concluded that the normal law of the land was insufficient to prevent him from indulging in activities prejudicial to national security. “It is the exclusive domain of the administration to maintain public peace and tranquility and to ensure the security of the UT,” the court noted.

Background

• The petitioner, a 35-year-old surrendered militant, was detained under the 1978 Act following an order issued by the District Magistrate of Ramban on August 4, 2024.
• The detention was based on a police dossier alleging that the petitioner had been named in 12 First Information Reports (FIRs) involving serious offences such as murder, and violations of the Arms Act and Explosive Substances Act.
• Further, the authorities reported that the petitioner had been absconding since 2023, and was a fugitive until March 4, 2025.
• The petitioner’s activities and sudden absconding were suspicious in sensitive matters.
• According to the prosecution, there was a high possibility that the petitioner, being a local well-versed with the terrain and having information regarding militancy history, hideouts, etc, might provide sensitive information to anti-national elements, harbour them and motivate local youth to join jihad to create communal tension.
• It was claimed that his activities remained harmful in the past, and in the current scenario, he could be highly prejudicial to the peace, prosperity, tranquility, integrity, and security of the Union territory, particularly the Gool area, especially since he was absconding to evade arrest.
• During this period, 12 separate entries were made in the daily diary register of the Gool Police Station between June and July 2024, alleging that he was instigating local youth to join “jihad” and creating communal tension.

Petitioner’s stand

• The petitioner’s counsel, T R Wani, argued that the detention order was arbitrary, mechanical, and based on a “verbatim copy” of the police dossier without independent application of mind by the magistrate.
• He claimed that the petitioner was not provided with the relevant materials or an explanation of the grounds in a language he understood (Urdu or Kashmiri), thereby violating his constitutional right to make an effective representation. Additionally, the petitioner sought Rs 50 lakh in compensation for alleged illegal captivity.

Findings

• It is manifest that the detaining authority derived subjective satisfaction not only based on a dozen FIRs registered against the petitioner, but also because he did not desist from anti-national activities thereafter, and a dozen Daily Diary Reports (DDRs) were entered against him at the Gool Police Station.
• It is now crystallised that even a single organised activity may be sufficient to sustain an order of detention.
• The detaining authority derived subjective satisfaction not based on one FIR, but on as many as a dozen FIRs registered against the petitioner under very serious offences like murder, and violations of the Explosive Substances Act and Arms Act, which failed to deter him from indulging in similar activities.
• Section 8(3) of the PSA enumerates various prejudicial activities that would fall within the scope of “acting in any manner prejudicial to the maintenance of public order.”
• The detaining authority, in terms of subsection 4 of Section 8 of the PSA, is obliged to report the fact to the government along with the grounds on which the order has been made.
• It includes other particulars that, in his opinion, have a bearing on the matter, and it is provided that no such order shall remain in force for more than 12 days, unless it has been approved by the government in the interim.
• The next ground urged by the petitioner is that the grounds of detention, the detention order, and the dossier were not furnished to him within the stipulated period prescribed under Section 13 PSA, and were neither read over nor explained to him in the language understood by him, thereby preventing him from making an effective representation against his detention.
• There is no dispute to the settled position of law that the right of representation against a detention order is a facet of fundamental right guaranteed under Article 22 (5) of the Constitution of India, and if this right is transgressed, the detention stands vitiated.

• It is indeed a settled position of law that “communication” as envisaged under Section 13 PSA means bringing home to the detainee effective knowledge of facts and grounds on which the detention order is made.
• The grounds of detention must be read over and explained to the detainee in a language fully understood by him and in a script which he can read, to satisfy the requirement of law.
• The subjective satisfaction of detaining authority, particularly when ordinary law of the land has not proved sufficient to deter him from indulging in anti-national activities, is not open to objective assessment of this court in the exercise of its jurisdiction.
• The high court, while exercising jurisdiction, cannot act as a court of appeal to find fault with the subjective satisfaction of the detaining authority.
• It has no jurisdiction or power to substitute its satisfaction with that of the detaining authority or to decide whether satisfaction arrived at by the detaining authority was reasonable and whether, in the circumstances of the case, a particular person can be detained or not.
• It is settled in law that the power of preventive detention is not exercised as a measure of punishment. It is preventive in nature.
• It may or may not relate to a criminal offence or registration of an FIR. It is precautionary in nature and can be exercised on reasonable apprehension and anticipation.
• The basis of detention is the subjective satisfaction of the detaining authority on a reasonable likelihood of the detenue acting in a manner similar to his past activities, which may prove prejudicial to the security of the state/Union territory, and a detention order is passed to prevent him from indulging in similar activities.
• Despite a dozen FIRs lodged against the petitioner for serious offences of murder and offences under the Explosive Substances Act and Arms Act, and a dozen DDRs entered in his name in the concerned police station, he continued to indulge in anti-national and anti-social activities.
• These cases failed to deter him from indulging in activities prejudicial to the security of the Union territory and the country.