J&K High Court Frees 2, Slams 'Mechanical' Detentions; Upholds PSA In Terrorist, Separatist Cases

Srinagar: The High Court of Jammu & Kashmir and Ladakh struck down two preventive detention orders, upheld two others, and quashed a criminal case it called an "abuse of process".The judgments, all authored by Justice Sanjay Dhar, reflected a common theme: preventive laws and criminal proceedings cannot replace due process, nor can they be wielded on vague or stale grounds.

In HCP No. 21/2025, the court came down heavily on the preventive detention of Abdul Gani Mir alias 'Gani Kak', a resident of Pampore, who had been detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act.

"There was no material before the detaining authority to frame an opinion that the petitioner was indulging in the illicit traffic of drugs after bail. The subjective satisfaction appears to be a mechanical exercise of power, which cannot be sustained in law," the judge ruled.

Mir had earlier been arrested in 2022 for alleged possession of five kilograms of "Bang Choora-like substance" but was granted bail. The court noted that no new FIRs, nor any credible evidence of reoffending post-bail, were cited. “Based on such allegations, no prudent person would conclude that the petitioner has indulged in illicit traffic of drugs," the court added.

He was ordered to be released "forthwith" unless required in another case. In contrast, the court upheld the preventive detention of Ameer Hamza Shah of Bandipora under the Public Safety Act. Shah, accused of 16 prior FIRs and ties to Tehreek-e-Hurriyat, was found to have allegedly resumed separatist activities after being released from a previous detention.

"The petitioner has continued to organise meetings of people having separatist ideologies... and arranged a stage for anti-national activities," the court cited from the grounds of detention. The detaining authority had "furnished sufficient particulars," including Shah's alleged hoisting of pro-Pakistan flags and continued affiliation with a banned outfit.

The court rejected claims of procedural violations, noting Shah was furnished 99 leaves of material in his language and was given a personal hearing before the Advisory Board.

"It cannot be stated that there has been non-application of mind," the court ruled, dismissing the petition in HCP No. 329/2024. A similar fate awaited Mufasil Ahmad Thoker of Kulgam, whose preventive detention under PSA was also upheld in HCP No. 44/2024.

Though Thoker was earlier detained in 2019 and released in 2021, the court accepted that the detaining authority had cited fresh allegations. "Even after release, the petitioner was found working on the directions of an active terrorist... and was assisting in the recruitment of young blood of South Kashmir in militant outfits," the judgment stated.

The court found that the material had been provided to the detainee, including a translated copy, and dismissed the argument that the detention was based on stale incidents. "There were compelling reasons for the detaining authority to pass a fresh detention order," Justice Dhar held.

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