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In a case of preventative detention, no crime has been proven, no charge has been issued, and the grounds for such imprisonment is suspicion or reasonableness, rather than a criminal conviction that can only be justified by legal evidence. Preventive justice entails taking steps to prevent illegal activities from being perpetrated. However, when a person’s most fundamental human right, personal liberty, is violated, the laws of preventative detention must be strictly applied, and strict adherence to procedural protections, no matter how technical, must be made mandatory, this was brought up by Justice Vinod Chaterji Koul of the Jammu and Kashmir High Court in the matter of Mohammad Maqbool Dar versus Union Territory of Jammu and Kashmir [ WP(Crl) no. 148/2020]

The order was passed for the fact that the detention order has been challenged on several grounds, learned counsel for the petitioner has adamantly argued that the material relied on by the detaining authority in making the impugned detention order has not been provided to the detainee in order for him to make an effective and meaningful representation. Another argument advanced by qualified counsel for the petitioner is that the grounds of detention are a carbon copy of the police report.

Respondents argue in their counter-affidavit that the order of custody is not unconstitutional since it was necessary to hold the detainees under preventive detention. The detainee has been engaging in activities that jeopardise the state’s security. The detainees’ legal arguments are claimed to be legally flawed, unsustainable, and without validity. The grounds for detention are also claimed to be exact, immediate, and relevant. The detainee was also informed that he might appeal his custody order to the government. The warrant was read to him and explained, and the order was issued after careful consideration.

The detainee’s main claim in this writ petition is that he was unable to make an effective and meaningful representation against his detention, either to the detaining authority or to the Government, because he was not provided with the necessary materials by the detaining authority. As a result, there is a violation of Article 22 (5) of the Constitution of India, and in the absence of such material.

It was held by the court when appropriate remedies are available under the laws of the land for any omission or commission under such laws, preventive detention is not an option. As seen in, V. Shantha v. State of Telangana and others, AIR 2017 SC 2625. Invoking the provisions of the preventive detention Act as an extreme measure to insulate would be time consuming and would not be an effective deterrent to prevent the detainee from engaging in further prejudicial activities, affecting the maintenance of public order or the security of the State, and that there was no other option.

Without a doubt, the offences alleged to have been committed by detainees are punishable under current laws, but such punishment must be carried out in accordance with those laws, and recourse to preventative detention legislation would not be justified. Preventive detention entails holding someone without charge in order to keep them from committing specific sorts of crimes. However, such detention cannot be used to replace the regular law or to relieve the investigating authorities of their responsibility to investigate crimes that the detainee may have committed. After all, preventive detention cannot be used to detain someone in custody indefinitely without a trial. In this regard, the decisions in the cases of Rekha and V. Shantha, as well as Sama Aruna v. State of Telangana AIR 2017 SC 2662, are relevant.

Thus, The plea is dismissed, and the detention order No.27/DMP/PSA/20 issued against the detainee, Mohammad Maqbool Dar S/o Ghulam Ahmad Dar R/o Hariparigam Tehsil Awantipora District Pulwama, is quashed. As a corollary, respondents are ordered to release the detainee as soon as possible if he is not required in any other case.

Click here to read the full judgement.