Says Compliance with procedural safeguards in preventive detention vital 

Aqib Ali

Srinagar, Dec 1: Preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial, the Jammu and Kashmir High Court has said as it quashed order under Public Safety Act against a person from Baramulla.

“The Preventive Detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which detenu may have committed.

After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial,” a bench of Justice Tashi Rabstan according to news agency GNS said.

The court also called for meticulous compliance with procedural safeguards describing them mandatory and vital.

“Article 22(3)(b) of the Constitution of India, which vouchsafes preventive detention, is only an exception to Article 21 of the Constitution. An exception is an exception and cannot ordinarily nullify the full force of main rule, which is right to liberty in Article 21 of the Constitution,” the court said.

Fundamental rights are meant for protecting civil liberties of people and not to put them in immurement for a long period shorn of recourse to a lawyer and without a trial, the court said.

“It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in essence a detention order of three months, or any other period(s), is a punishment of that particular period’s incarceration. What difference is it to detenu whether his immurement is called preventive or punitive?”

Besides, the court said, in cases of preventive detention no offence is proved and justification of such detention is suspicion or reasonable probability, and there is no conviction that can only be warranted by legal evidence.

“Preventive detention is every so often described as a ‘jurisdiction of suspicion’, Detaining authority passes detention order on subjective satisfaction. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to rule of law,” the court said, adding, “Since Clause

(3) of Article 22 specifically excludes applicability of clauses (1) and (2), detenu is not entitled to a lawyer or the right to be produced before a Magistrate within 24 hours of arrest.”

To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with procedural safeguards, howsoever technical, is mandatory and vital, the court said and quashed detention order PSA against Ishfaq Ahmad Kumar son of Abdul Majeed Kumar of Kumar Mohalla, Khanpora, District Baramulla. Ishfaq according to the state is a “chronic stone-pelter.”

“Respondents are directed to set detenu at liberty if not required in any other offence,” the court added.

His counsel Wajid Haseeb submitted that Ishfaq was arrested by government forces in November 2016 from his home and taken to some camp, where he was detained for many days. Thereafter, he was shifted to police station Baramulla and “implicated” in case (FIR no.266/2016), the counsel said.

On November 15, bail was granted to him by a court and he was released from the custody.

However, Ishfaq was called to police station Baramulla in the first week of July where he went in compliance to bail condition. But he was detained for several days and consequently “implicated” in case FIR (no.259/2016), he said. Ishfaq was granted bail in the fresh FIR but he was not released as bail order was served to the police authorities. Instead, the counsel said he was shifted to Central Jail Kotebhalwal, Jammu, which was followed by the PSA detention order.