Preventive Detention cannot be used as a substitute for ordinary law: High Court of Jammu and Kashmir

Preventive detention involves detaining a person without trial to prevent him from committing a crime in the future based on his past record with the law. However such tools are meant to be used strictly in compliance with the safeguards and not as an alternative to the ordinary law of the land. A judgement passed by a single-member bench consisting of Justice Vinod Chatterji of the High Court of Jammu and Kashmir in the case of Mohammad Maqbool Dar v Union Territory of Jammu and Kashmir and others [WP(Crl) no. 148/2020] on 4th June 2021 addressed the usage of preventive detention.

The petitioner, Mohammad Maqbool Dar was held under preventive detention in terms of Jammu and Kashmir Public Safety Act, so as to prevent him from acting in any manner that could be adverse to the security of the state. This was challenged on the grounds that the material relied upon by the detaining authority while passing the detention order has not been provided to the detainee so he was not allowed to effectively represent his case, leading to a violation of Article 22 of the Indian Constitution. The respondents submitted that the detainee played a role in anti-national activities which were detrimental to the integrity and sovereignty of the nation and that he already has a criminal case going against him.

The court noted that the detainee cannot be expected to make a meaningful exercise of his constitutional and statutory rights guaranteed under Article 22(5) of the Cosntitution unless the material on which the detention order is based, is supplied to him. The case of V. Shantha v State of Telengana and others, [AIE 2017 SC 2625] was cited, where it was held that preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws. The court also stated that preventive detention involves detaining a person without trial in order to prevent him from committing a certain offence, so it should not be used as an instrument to keep a person in custody without trial.

The court stated that “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”. Finally the detention order was quashed and the judgement concluded that “As a corollary, respondents are directed to set the detenu at liberty forthwith provided he is not required in any other case”.

Click here for the judgement

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