Provisions like preventive detention must be used only in cases where ordinary law is not sufficient: High Court of Jammu and Kashmir

Preventive detention allows for a person to be detained on the basis of his past record for a crime he had not yet committed. This provision violates the fundamental rights of the person being detained and hence must be used only in exceptional cases where ordinary law is insufficient. This was found in the judgement passed in the case of Shaheen Ahmad Parray [WP (Crl) no. 133/2020] by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Ali Mohammad Magrey on 19th July 2021.

The petitioner, Shaheen Ahmad Parray through the present Habeas Corpus petition challenged the detention order passed by the District Magistrate in Shopian which detained him under provisions of the Jammu and Kashmir Public Safety Act 1978. The petitioner contended that firstly the allegations made against his are false and fabricated by the police, secondly that the grounds of detention were vague and finally that he was not supplied with the dossier and therefore prevented from making effective representation against his representation. On the otherhand the learned counsel for the respondents maintained that the impugned order was in consonance with law and hence should be upheld by the court. It was noted by the High Court that there was nothing on the file that suggested that the grounds of detention couched in English were explained to the detenu in a language which he understood which meant his right to make representation had indeed been violated.

The case of Pooja Batra v Union of India & Others [5 SCC 296 of 2009] was cited, where it was held by the Supreme Court of India stated that “since an order of detention in prison involves the fundamental rights of citizens, freedom of movement and pursuit of normal life and liberty, no absolute immunity can be claimed by the authorities as to the decision arrived, and it is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered”. This was a principle also laid down in the case of Younus Nabi Naik v State of Jammu & Kashmir [JKJ 102 of 2020 (2)]. The court reiterated that steps must always be taken to ensure that a provison like preventive detention is not misused by authorities in any manner and is reserved for cases where ordinary law was insufficient.

Justice Ali Mohammad Magrey concluded “I am of the considered view that there must have been some additional material adverted to and considered by the Detaining Authority in arriving at a conclusion that the ordinary law was not enough for deterring the detenue from indulging in the alleged subversive activities, registered against the detenue three years back where no bail has even been granted to him and that being unavailable in the instant case renders the impugned order as bad in law. Nowhere do the respondents state that from the year of registration of FIR 53/2016 & 54/2016, till the year of issuance of impugned order i.e. 2019, the detenue has indulged in activities that additionally constituted to commission of offence which compelled the Detaining Authority to issue the impugned order”. The petition succeeded and the detenu was directed to be released from prison.

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