J&K High Court Quashes Detention Of Journalist Fahad Shah, Orders 'Set At Liberty...'

A year after he was detained under the preventive detention law, the J&K Public Safety Act, the High Court of Jammu and Kashmir and Ladakh quashed the detention of journalist Fahad Shah and directed the authorities to release him forthwith.

The Court says the detention order against Shah was quashed and it is ordered he is “set at liberty forthwith if not required in any other case.”

“In the present case, the procedural requirement has not been followed and complied with by respondents in letter and spirit and as a corollary
thereof, the petition is required to be allowed and the detention order is liable to be quashed,” the Court said.

The Court also said no compelling reasons have been given or shown by the detaining authority while passing the detention order against Shah when he was already in custody and under an FIR in which no bail had been granted. “In absence of any compelling reasons, the order of detention cannot sustain the test of law,” the court said.

On March 3, 2022, the district magistrate of Srinagar passed an order under section 8 of the Jammu and Kashmir Public Safety Act, 1978, placing Shah under preventive detention to “prevent him from indulging in the activities which are prejudicial to the maintenance of public order.”

During arguments, counsel for Shah, N. A. Ronga, described the allegations against Shah as baseless, unfounded vague and without any substance, saying there is not an iota of truth in the allegations.

Shah was arrested on February 2, 2022, by Jammu and Kashmir police in Pulwama district and booked under Section 13 of ULA (P), section 124A and Section 505 IPC. Shah filed a bail application before a Court in Pulwama and he was granted bail. However, when the order of the Court was served upon the police concerned, they did not release him and shifted him to the Police Station Imam Sahib Shopian.

In the Shopian, an FIR under Sections 153 and 505 of the IPC was registered against him. In this case, he filed a bail application before the Court and was granted bail. But he was not released by the police and was shifted to the Safakadal area of Srinagar. At the police station, Safakadal another FIR was registered against him. While in custody at Safakdal the district magistrate Srinagar passed a detention order against Shah.

Ronga argued Shah was not provided with a copy of the dossier, material or other records including the copies of FIRs that have been referred to and relied upon by the detaining authority while framing grounds of detention and passing the detention order. “Thus he was deprived of his constitutional and legal right of making a meaningful and effective representation against his detention.” He also said since the bail was not
granted in the FIR registered at the police station Safakdal against Shah there was no reason to detain him under J&K Public Safety Act.

The government advocate Sajjad Ashraf argued that the purpose of preventive detention is detaining a person and not to punish him for something he has done but to prevent him from doing it.

“One is a punitive action and the other is a preventive act. In one case, a person is punished for his guilt and the standard is proof, beyond a reasonable doubt, whereas in preventive detention, a man is prevented from doing something, which is necessary for reasons mentioned in the Act, to prevent him. An eminent thinker and author, Sophocles, had to say: “Law can never be enforced unless fear supports them.” This statement though is very old but has its relevance even today.”

The government advocate also argued that Shah “was found involved in various anti-national nefarious activities and was, accordingly, detained
under J&K PSA 1978.” He also argued the detenu was prevented from conducting “anti-national, nefarious activities which are prejudicial to
the maintenance of public order.” “Detenu has a criminal bent of mind which is evident from his conduct over a period of time and has been found
indulging in anti-national, nefarious activities in order to disturb the public peace and order, prejudicial to the maintenance of public order, for
which, sufficient material was received to detain the detenu under J&K PSA 1978.”