Preventive detention to be exercised with utmost caution and restraint: High Court of Jammu and Kashmir

Preventive detention is passed with a view to prevent the person from committing such illegal activities in future on the past conduct which may be prejudicial and disturb the public order. However such laws should only be exercised with utmost caution and restraint so as to not violate someone’s personal liberty. This was upheld in the judgement passed by a single member bench of High Court of Jammu and Kashmir consisting of Justice Puneet Gupta in the case of Sohan Singh v Union Territory of Jammu and Kashmir [WP(Crl) No. 09/2021] on 4th of June 2021.

The petitioner, Sohan Singh challenged a detention order passed under provisions of the J&K Public Safety Act, contending that it was served upon him when he was already in police custody for substantive offences and was hence deprived of effective representation before the government and advisory board in respect to the order passed against him. The petitioner also brought to the notice of the court that the order does not paint an accurate picture because it mentions the number of FIRs filed against him in the past but fails to state in how many he has been acquitted or convicted. The respondents on the other hand countered this by stating that the petitioner is a serial offender who shows no intention to mend his ways and furthermore that he earned acquittal and bail in the past only through tampering of evidence and influencing witnesses. It was also stated that the detention order was approved by the government vide order No. PB-V/197 of 2021 on 9th March 2021.

The court noted that irrespective of the petitioner’s character or record, not including relevant information with regards to the outcomes of the FIRs filed against the petitioner was grounds enough to quash the detention order. The case of V.C. Mohan v Union of India and others [WP (Crl) No: 161/2002] was cited where the Supreme Court held that “the factum of non-placement of relevant documents by the concerned authorities before the detaining authority and held the same to have vitiated proceedings”. The court stressed upon the need to have included in which cases the petitioner had been acquitted and in which ones he was convicted in any order that tries to establish him as a serial offender.

Justice Puneet Gupta concluded that “the detention order is outcome of non-application of mind, the nature of offences alleged against the petitioner in the order by themselves cannot sustain the detention order in the eyes of law” and also stated that “The preventive detention is a deviation from the concept of liberty which is sacrosanct to a human life and the power of preventive detention is to be exercised with caution and restraint”.

Click here for the judgement

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