The Jammu & Kashmir & Ladakh High Court (Jammu Bench) has clarified that under Article 22(6) of the Constitution of India and Section 13(2) of the Jammu & Kashmir Public Safety Act, 1978, the detaining authority is exempted from disclosing facts and intelligence reports (such as the District Special Branch report) to the detenu if the authority considers such disclosure to be against the public interest. The non-furnishing of such privileged intelligence reports, or of FIRs that are merely referenced to recount historical context rather than relied upon for subjective satisfaction, does not vitiate the detention order nor does it deprive the detenu of the valuable right to make an effective representation.
Further, the Court asserted that factual similarities between the dossier and the grounds of detention do not constitute a non-application of mind by the detaining authority, provided that the grounds of detention are independently formulated and not a mere verbatim reproduction of the dossier.
The Division Bench comprising the Chief Justice Arun Palli and Justice Rajnesh Oswal observed that the District Magistrate had derived his subjective satisfaction strictly from the dossier and the special report submitted by the District Special Branch (DSB), and it was solely upon consideration of this material that the impugned order was issued. Regarding the appellant’s grievance over the non-production of the 10 FIRs, the Bench noted that these FIRs were referenced merely to recount the history of terrorist attacks in District Poonch, and all material actually relied upon by the detaining authority, with the exception of the privileged intelligence report, was duly provided to the appellant.
The Bench observed that OGWs of terrorist organisations act with a level of secrecy that often shields their illegal activities from immediate detection, and their activities are primarily identified through intelligence reports, as direct evidence is rarely forthcoming due to their secretive nature and specific mode of operation.
The Bench also observed that the special report prepared by the District Special Branch pertains to an intelligence report and was not required to be provided to the appellant. This is in light of the statutory provision contained in Section 13(2) of the J&K Public Safety Act and Article 22(6) of the Constitution, which vests power with the detaining authority to withhold facts, the disclosure of which would be against public interest.
After carefully examining the grounds of detention alongside the dossier and the detention order, the Bench observed that while certain factual similarities are inevitable when both documents arise from the same set of allegations, the grounds are not a verbatim reproduction of the dossier and were independently formulated.
Briefly, the appellant was detained pursuant to an order issued by the District Magistrate, Poonch (Respondent No. 2), in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, with a view to prevent him from acting in any manner prejudicial to the security of the State of India as well as the Union Territory of Jammu & Kashmir. The appellant challenged the said order of detention, which was dismissed by the Writ Court.
The appellant challenged the said judgment on two specific grounds: first, that the appellant was not supplied with the complete material relied upon by the detaining authority, specifically 10 FIRs mentioned in the grounds of detention and dossier; and second, that the grounds of detention are a verbatim reproduction of the dossier, reflecting a non-application of mind.
The Magistrate stated that the appellant is an Over Ground Worker (OGW) for the banned outfit Jaish-e-Mohammad and consistently receives instructions from a wanted terrorist operative, Haq Nawaz, who is currently evading arrest in FIR under Sections 302, 307, 120-B, 121, 122, 436 IPC; 3/4 ESA; 7/25/26/27 Arms Act; and 16/18/20 UA(P) Act, pertaining to a terrorist attack on an Army vehicle at Tota Wali Gali in April 2023. Intelligence suggests the appellant communicates via sophisticated, encrypted technologies, is the son-in-law of another OGW, Mohd. Shabir, and regularly provided information on security force movements and facilitated the logistics and transportation of arms and ammunition.
At the time of execution of the detention order, the appellant was furnished with the detention order, notice of detention, grounds of detention, and dossier of detention, and acknowledged receipt of the said documents by appending his signature on the Execution Report. The detaining authority arrived at its subjective satisfaction on the basis of the dossier and the report of the District Special Branch (DSB).
Appearances:
Senior Advocate Sunil Sethi and Advocate Lawanya Sharma, for the Appellant
Senior AAG Monika Kohli, for the Respondent
