Srinagar- Preventive detention must be authorized by the due process of law, the High Court of J&K and Ladakh has observed while quashing detention orders under Public Safety Act against two detainees.
While quashing PSA detention 8 April 2024 order against a 25-year-old youth, Anjum Khan of Surankote Poonch, a bench of Justice Wasim Sadiq Nargal took a serious note of the “casual approach” of the detaining authority in issuing the detention order “without supplying the dossier to the detenue and arriving at a subjective satisfaction in absence of any cogent reasons or material.”
Instead, the court said, the detaining authority merely placed reliance on two FIRs “which have no nexus with the security of the State or public order or any proximity/ live link with the allegation leveled in grounds of detention.”
“The inability on part of the State’s police machinery to take recourse to ordinary criminal law should not be an excuse to invoke the jurisdiction of preventive detention,” the court said, adding, “In the instant case, the relevant provisions in the Indian Penal Code were clearly sufficient to deal with the situation, however the respondents (authorities) have invoked provisions of the Public Safety Act to indirectly achieve something which could not be achieved directly by them. i.e. the detention of the petitioner (Anjum).”
Referring to law laid down by the Supreme Court, the Court said that it is of the view that the cases of preventive detention must be authorized by the due process of law.
“Since the detenue (Anjum) was denied of his right of making effective representation as the dossier was not given to the detenue, which is the basic right enshrined under the Constitution, such a violation of fundamental rights amounts to gross violation of personal liberty and right to life,” the court said, adding, “Thus, the order impugned which is violative of basic fundamental rights cannot sustain the test of law and is liable to be set aside. Moreover, no compelling reason has been recorded by the detaining authority which could be the basis of detaining the detenue and on this ground also, the impugned order cannot sustain in the eyes of law.”
Subsequently, the court quashed the detention order of Anjum and ordered him “to be set at liberty forthwith, if not required in any other case(s).”
Meanwhile, a bench of Justice Rahul Bharti quashed PSA detention order, dated 9 March this year, against a 45-year-old Talib Hussain alias Javied, of Mendhar Poonch.
“The manner in which …District Magistrate, Poonch responded to the dossier of …Sr. Superintendent of Police (SSP), Poonch against the petitioner (Talib) is as if the …District Magistrate, Poonch was made to act blind folded in signing the detention order of the petitioner without his own application of mind at work,” the court said, adding, “Even otherwise, FIRs reckoning from 2001 to 2013, with or without any acquittal in favour of the petitioner are, so distant in point of time of reference that a preventive detention order against the petitioner on the reference of the said FIRs could not have been conceived at the very first instance lest that of granting it.”
The Court said that it would like to “refresh the mindset of the sponsoring as well as detention order making authority acting in exercise of preventive detention jurisdiction who have the tendency to fall in misconception of their authority and office in subjecting a person/citizen to the preventive detention custody on a pretext which do not fall within the scope of preventive detention jurisdiction but still lead themselves by habit of their casualness and callousness without bearing and exhibiting any sense of constitutionality in seeking and granting preventive detention order/s against person/s at the cost of mocking the Constitution of India which in its Part-III guarantees fundamental right to life and personal liberty in terms of its articles 21 & 22.”
Subsequently, the court quashed the detention order and ordered Talib’s release.
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