Preventive Detention Not ‘Quick Alternative’ to Normal Legal Process: HC 

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Srinagar—Preventive detention is not a quick alternative to normal legal process and cannot be made a substitute for the ordinary law, the Jammu and Kashmir High Court has said while quashing order under Public Safety Act of a youth from Old City here.

“The preventive detention is not a quick alternative to normal legal process,” a single bench of Justice Tashi Rabstan said, referring to Supreme Court’s recent decision in which it held that preventive detention of a person by a State after branding him a ‘goonda’ merely because the normal legal process was ineffective and time-consuming in ‘curbing the evil he spreads’ is illegal and that detention of a person is a serious matter affecting the liberty of the citizen.

“Preventive detention cannot be resorted to when sufficient remedies are available under the general laws of the land for any omission or commission under such laws,” the court said, adding that recourse to normal legal procedure would be time consuming and would not be an effective deterrent, and that there was no other option except to invoke the provisions of the preventive detention Act was an extreme measure to insulate.

“To classify the (detainee) as a ‘disgruntled element’ cannot be sufficient to invoke the statutory powers of preventive detention. No doubt the offences alleged to have been committed by

(detainee) are such as to attract punishment under the prevailing laws but that has to be done under the prevalent laws and taking recourse to preventive detention laws would not be warranted,” the court added.

The preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences. “Such detention cannot be made a substitute for the ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which (detainee) may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial,” the court said, adding that preventive detention was a serious invasion of personal liberty and meagre safeguards that the Constitution provides against improper exercise of the power, must be “jealously watched and enforced by the Court.”

Subsequently, the court quashed detention order (No.DMS/PSA/56/2016, dated 7 October 2016) of Kaiser Ahmad Bhat son of Khursheed Ahmad Bhat of Nawa Kadal Tarbal near Ahmed Sahab Astan here.

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