The Jammu and Kashmir High Court has quashed the detention of journalist Fahad Shah, 34, under the Public Safety Act (PSA), saying that the apprehension of an adverse impact to public order is a mere surmise of the detaining authority.
“A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the ‘maintenance of public order’. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact,” Judge Wasim Sadiq Nargal observed.
The judge said there were no reports of unrest since the detenu was released on bail on January 8, 2021 and detained with effect from June 26, 2021.
“The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian,” the court observed.
The court held that the case was a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority.
“I conclude that since the detaining authority has used both the expressions “Public Order” and “Security of the State” with a wavering mind and uncertainty and accordingly, the detention order gets vitiated and cannot sustain the test of law and is liable to be quashed,” the judge directed.
The court said it was emphatically clear that maintenance of public order and security and sovereignty of the country are two distinct expressions and have different connotations and are demarcated on the basis of gravity and cannot be used simultaneously, “which clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind while passing the order of detention”.
“Accordingly, the order impugned gets vitiated and liable to be set aside,” the court added.
Mr. Shah, editor of the Kashmir Walla, an online portal, was arrested in February 2022 following a report regarding an encounter in Pulwama. The police accused Mr. Shah of “uploading anti-national content, including photographs, videos and posts with criminal intention to create fear among public”.
Mr. Shah was later booked under the provisions of the Unlawful Activities (Prevention) Act (UAPA). He secured bail in three cases but was booked under the PSA, which allows preventive detention for up to two years.
“Mr. Shah secured three bails, including in two UAPA cases, in the past one year. His detention under the PSA was quashed. However, Mr. Shah still remains in jail,” a colleague of the arrested journalist said.
