J-K high court rules mere 'OGW' allegation insufficient for PSA detention

The High Court of Jammu & Kashmir and Ladakh has quashed a preventive detention order under the Public Safety Act against an Anantnag man, holding that a bald assertion labelling a person as an “Over Ground Worker” (OGW) cannot by itself be used to deprive an individual of personal liberty.

A bench of Justice M A Chowdhary allowed a habeas corpus petition filed by Ishfaq Ahmad Wani, a resident of Baghwadi Nowshera in Srigufwara, and set aside detention order No. 18/DMA/PSA/DET/2025 dated April 29, 2025, passed by the District Magistrate, Anantnag, Kashmir Dot Com (KDC), reported.

According to KDC, the court directed the authorities to release Wani from preventive custody forthwith, provided his detention was not required in connection with any other case.

Wani had been detained on allegations that he was working as an OGW for the proscribed Lashkar-e-Taiba (LeT) and was acting in a manner prejudicial to the security of the State.

The detention order relied primarily on FIR No. 60/2016, registered at Police Station Srigufwara under Section 307 of the Ranbir Penal Code and provisions relating to rioting.

Examining the records, the court noted that Wani had already been granted bail by a competent court in the 2016 case, but the District Magistrate had failed to take the development into consideration while arriving at the subjective satisfaction required for preventive detention.

“Preventive detention cannot rest upon mere labels,” the court said, adding that the detaining authority must disclose the factual circumstances connecting the alleged activities of the detenue with the statutory purpose for which the power of preventive detention is exercised.

“A bald assertion that a person is an ‘OGW’ or that his activities are prejudicial to the security of the State/UT of J&K, without sufficient particulars enabling him to understand what precisely weighed with the detaining authority, does not meet the constitutional standard,” it said.

The court observed that while past conduct can be relevant to preventive detention, there must be a “live and proximate link” between past events and the apprehension of future prejudicial conduct.

It held that reliance on the eight-year-old 2016 FIR, coupled with the failure to consider the bail granted to Wani, had severed that link and vitiated the detention order.

The bench also took note of the fact that the grounds of detention were almost a verbatim reproduction of the police dossier, apart from changes in paragraph numbering.

Referring to Supreme Court rulings, the court said a detaining authority cannot act as a “rubber stamp” or merely function as a conduit for a police dossier, but must independently assess the allegations before curtailing a person's liberty.

The court further held that vague and generalised allegations without concrete particulars had deprived Wani of his fundamental right under Article 22(5) of the Constitution and Section 13 of the PSA to make an effective representation against his detention.

It said the subsequent rejection of his representation by the government could not cure the original defect arising from non-application of mind.

Holding that the right to personal liberty under Article 21 cannot be curtailed on the basis of conjectures or stale antecedents, the High Court quashed the detention order and allowed the petition.

Advocate Mohammad Ibrahim Wani appeared for the petitioner, while Government Advocate Ilyas Nazir Laway, assisted by counsel Nadiya Abdullah, represented the Union Territory administration.