‘Recourse To Preventive-Detention Illegal If Ordinary Law Can Deal With A Situation’

Srinagar—If the ordinary law of the land can deal with a situation, recourse to a preventive detention law will be illegal, the Jammu and Kashmir High Court said as it quashed deputy commissioner Bandipora’s order under PSA against Ghulam Mohammad Parray, a resident of Hajin area of the north Kashmir district. 

“It must be remembered that if, in the case of preventive detention, no offence is proved and there is no conviction, which can only be sanctioned by legal evidence, preventive detention is often described as ‘jurisdiction of suspicion,’” a bench of Justice M K Hanjura further said, adding, “To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however, technical, is, in our opinion, mandatory and vital.”

As the petition filed through advocate Mian Abdul Qayoom, Parray was earlier on detained by the deputy commissioner under PSA on 2 November last year. On March 10 this year, the order was quashed by high Court and Parray was directed to be released forthwith.

On serving the order on the authorities, Parray was released but re-arrested immediately in the jail premises itself and confined in police station Hajin.

Qayoom said Parray was not produced before any Court of law and shifted to Kotebalwal Jail, Jammu under fresh PSA order by the deputy commissioner on 18 July this year. 

Parray challenged the order, mainly on the grounds that he has been deprived of the right to file an effective representation before the detaining authority (DC Bandipora) and that he could not have been detained under the provisions of PSA when he was already booked in substantive offences under various F.I.Rs. 

On the other hand, the ruling PDP-BJP government argued that the order of detention was passed after taking into consideration the relevant provisions of J&K Public Safety Act 1978 (PSA). The government counsel submitted before the court that grounds of detention were conveyed to Parray in the language with which he is conversant and these have been read over and explained to him at Central Jail, Kot Bhalwal. “Therefore, the order of detention does not suffer from any vice. It has been passed with due diligence and it will sustain in the eyes of the law,” the counsel said.

After hearing both the parties, the court quashed the PSA detention order and directed authorities to release Parray “unless required in any other case.”

“There is no material from which it can be discerned that (Parray) was ever apprised that he has a right to make a representation to the Detaining Authority. This vitiates the detention order,” the court said.




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