Saying that “preventive detention can’t rest upon mere labels”, the Jammu and Kashmir High Court has quashed the Public Safety Act (PSA) invoked against a South Kashmir resident on charges of being an “OGW (overground worker) of the Lashkar-e-Toiba”.Noting that the petitioner has already been granted bail, the court said, “Preventive detention cannot rest upon mere labels. The authority must disclose the factual position which connects the alleged activities of the detenu with the statutory purpose for which the extraordinary power is exercised.”Quashing the PSA against Ishfaq Ahmad Wani, Justice M A Chowdhary also observed in his order, “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.”Wani, a resident of Srigufwara in Anantnag, was booked under the PSA in April last year. In the police dossier and the grounds of detention, Wani was shown as a Lashkar OGW, and it was alleged that his “activities are prejudicial to the security of the state”.Also Read | ‘Books don’t make a criminal’: Court quashes Kashmir scholar’s detentionWhile Wani’s side had argued that the basis of detention was a case against him in which he had already been granted bail by the court, the respondents argued that “preventive detention is a distinct jurisdiction which can be invoked notwithstanding the pendency of criminal proceedings or the availability of the ordinary criminal law”.While calling preventive detention an “exceptional encroachment upon the cherished rights of personal liberty guaranteed in Article 21 of the Constitution”, the court observed that preventive detention is “not punitive”.“Its object is not to punish a person for an act already committed but to prevent him from engaging in conduct which is apprehended to be prejudicial to the security of the State/UT of J&K or maintenance of public order, as the case may be,” observed Justice Chowdhary in his judgment.Story continues below this adThe court said that while the subjective satisfaction of the detaining authority is undoubtedly entitled to due weight, such satisfaction is not wholly immune from judicial scrutiny.“The court can examine whether the satisfaction has been arrived at on the basis of relevant material, whether the authority has applied its mind to such material, whether irrelevant or extraneous material has been taken into consideration and whether there exists a live and proximate link between the antecedent conduct and the necessity for preventive detention,” it said.Justice Chowdhary observed that the then District Magistrate, Anantnag, had not applied his mind while passing the detention order. “What emerges is that FIR has been relied upon in support of the detention, although the said criminal case had admittedly culminated in grant of bail in the said case by the competent court of law,” the court observed. “There is nothing on record to demonstrate that this material fact was meaningfully considered by the detaining authority while arriving at the requisite subjective satisfaction. The distinction between existence of material and consideration of material is significant. The fact that a particular FIR forms part of the dossier does not by itself establish application of mind.”Though the respondents argued that the petitioner’s representation was rejected by the government, the court observed that mere rejection of the representation cannot cure an otherwise invalid detention order.Story continues below this adThe court said that though the permissible scope of judicial review in preventive detention is not to determine the truth or otherwise of the allegations contained in the police dossier, it is duty-bound to ascertain whether the statutory and constitutional safeguards have been observed and whether the subjective satisfaction is founded upon relevant, proximate and duly considered material.“On such examination, this Court finds that the impugned detention order suffers from non-application of mind, reliance upon stale and materially weakened antecedents, failure to consider vital intervening circumstances including bail granted in favour of petitioner, and insufficiently specific grounds to establish the requisite live nexus between the past conduct and the necessity for present preventive detention,” the court said.“Once the subjective satisfaction is found to be vitiated on these foundational grounds, the detention cannot be sustained merely on the basis of the seriousness of the allegations or the executive assertion that the petitioner is prejudicial to the security of the State/UT of J&K,” the court said.