Srinagar- The High Court of J&K and Ladakh Tuesday said that a preventive detention order is unsustainable on “illusory” grounds which have no real nexus with the past prejudicial activity.
“Preventive detention being a drastic State action based only upon suspicion arising from a person’s past activity, can be allowed, as the settled legal position mandates, only if there is a live and proximate link between a person’s past activities and the need for passing of a preventive detention order,” said a bench of Justice M. A. Chowdhary while quashing detention order, dated 27-02-2020, passed by District Magistrate Baramulla against Mushtaq Ahmad Bhat of Naikpora Seeloo Sopore.
“A preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity,” the court said, adding, “Delay in passing and execution of a preventive detention order not only defeats the very purpose of such order, but more importantly, creates a doubt as to the necessity of adopting such a harsh measure against an individual, whereby the individual’s liberty is curtailed on suspicion alone.”
Meanwhile the court quashed another detention order passed by District Magistrate Shopian on 9 April last year against Fahim Ahmad Check of Nowgam Shopian.
Meanwhile the court held the object of preventive detention is not to punish a man for having done something but to intercept before he does it and to prevent him from doing so.
Referring to the Supreme Court’s 2005 judgment, ‘Naresh Kumar Goyal v. Union of India & Ors, the bench of Justice M. A. Chowdhary said that the top court has held that an order of detention is not a curative or reformative or punitive but a preventive action devised to afford protection to society.
“….Preventive detention is devised to afford protection to society,” the court said, adding, “The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing so.” The court made the observation while dismissing a petition filed by one Fayaz Ahmad Kumar of Khanpora Baramulla, seeking quashing of an order under PSA on 18-10-2021 by District Magistrate Jammu against him.
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