| Preventive detention must be exceptional, not executive routine: HC | | | Early Times Report
JAMMU, May 12: In a strong reaffirmation of constitutional protection to personal liberty, the High Court of Jammu & Kashmir and Ladakh has quashed three preventive detention orders, holding that detention powers cannot be exercised mechanically or as a routine executive tool when ordinary criminal law is already in motion.
Justice Mohd Yousuf Wani, while deciding separate habeas corpus petitions, observed that preventive detention has to be passed with "great care and caution" as it curtails a citizen's most valuable and inherent human right. The Court made it clear that arrests in general and preventive detentions in particular are exceptions to the cherished fundamental right guaranteed under Article 21 of the Constitution.
The Court underlined that before passing a detention order, the authority must show real application of mind, subjective satisfaction, inevitability of detention, proper communication of grounds, and an effective opportunity to make representation. These, the Court held, are not empty formalities but mandatory constitutional safeguards under Article 22(5) and the relevant provisions of preventive detention law.
In one case, the Court quashed the detention of Madasar @ Jugnu of Udhampur, who had been detained under order No. PITNDPS 47 of 2025 dated 22.07.2025. The petition was filed through his father Latif. The petitioner was represented by Nikhil Padha, Advocate, while the UT was represented by Monika Kohli, Sr. AAG. The Court noted that the detenu was already on bail in the criminal cases relied upon by the authorities and there was no allegation that he had violated bail conditions.
The Court found that the detention order suffered from non-application of mind, lack of live link between the grounds and the detention order, and compromise of procedural safeguards. The petition was allowed and the authorities were directed to release the detenu from preventive custody, provided he was not involved in any other case.
In another matter, the Court set aside the detention of Rajan Singh @ Rahul Jamwal of Channi Rama, Jammu, whose detention order No. PITNDPS 20 of 2025 dated 16.04.2025 had been passed by the Divisional Commissioner, Jammu. The petition was filed through his wife Shagun Chandel. He was represented by Mr. Suyash Singh Chandel, Advocate, while the UT was represented by Monika Kohli, Sr. AAG.
The Court observed that the detenu had already been enlarged on bail in the FIRs relied upon by the authorities. It further held that the detaining authority had failed to clearly explain how ordinary criminal law had failed to prevent the alleged criminal activity. The Court also noted that no commercial quantity of narcotic drugs or psychotropic substances was alleged to have been recovered from the detenu, and the delay had snapped the required live link between the last alleged incident and the detention order.
The Court concluded that the detention order appeared to be the outcome of non-application of mind and that procedural safeguards under Article 22(5) of the Constitution and Section 3(3) of the PITNDPS Act had been compromised. Accordingly, the detention order was quashed and the respondents were directed to release the petitioner from preventive custody, if not already released.
In the third case concerning Mohd Ayaz of Lohai Malhar, Kathua, the Court examined detention under the Public Safety Act. The petitioner had challenged detention order No. PSA/151 dated 18.03.2025, passed by the District Magistrate, Kathua. He was represented by Ajay Gandotra, Senior Advocate, with Gulbaz Sheikh, Advocate, while the UT was represented by Suneel Malhotra, GA. The Court noted that one FIR relied upon by the authorities had already ended in acquittal, while in two other FIRs the petitioner had been granted bail.
The Court held that the FIRs relied upon did not disclose activities prejudicial to the security of the State and that the petitioner had already been enlarged on bail before the detention order was passed. The Court further observed that there was no live link between the alleged acts of 2021 and the preventive detention order passed after a gap of more than four years.
Relying on settled law, the Court reiterated that preventive detention is preventive and not punitive, and cannot be used merely to keep a person behind bars when ordinary criminal law is available. It stressed that if ordinary law can deal with the situation, recourse to preventive detention would be illegal.
The High Court's orders reinforce that liberty cannot be curtailed on stale allegations, copy-paste dossiers, unexplained delays, or vague claims unless the authority demonstrates strict compliance with constitutional and statutory safeguards. (JNF) |
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