Jammu & Kashmir

“Preventive detention is not akin to Punitive detention”: HC quashes PSA of south Kashmir resident

Central Jail Srinagar. [FPK File Photo/Vikar Syed]

Srinagar: The High Court of Jammu and Kashmir and Ladakh on Saturday quashed the Public Safety Act (PSA) of a Tanseem Ahmad of Awantipora village of south Kashmir directing the authorities to release him forthwith “unless he is required in any other substantive offense.”

The petition, seeking quashing of the detention order dated 31,08,2020 was filed by the father of the petitioner through Advocate Mohammad Ayub.

The FIR relied upon by the detaining authority to justify the preventive detention of the petitioner was registered in PS Awantipora, in the year 2020,  under section 18 & 20 of the ULA(P) Act.

He was slapped with PSA on 31,08,2020, at a time he was already undergoing imprisonment in Central Jail, Srinagar, in connection with the above FIR.

The PSA was, however, executed after 2 months- one day after the petitioner was enlarged on bail in the above FIR.

Court called in question the “unexplained delay” of more than two months in executing the detention order regardless of fact that they already had custody of the petitioner.

Advocate Mohammad Ayub challenged the detention order on many other grounds.

He pleaded, and the court accepted his plea: that it was only after the petitioner got bail in the above FIR, that authorities executed the preventive detention order.

The order does not cite any compelling reason that has necessitated the passing of the detention order, contended the Advocate Ayub.

The Counsel primarily questioned the ignorance feigned by detaining authority regarding the ongoing lodgement of the petitioner in Central Jail, Srinagar.

The grounds of detention carry no mention as to which FIR has led to the arrest of the petitioner- this becoming one of the reasons for the quashing of the PSA.

Justice Sanjeev Kumar observed: “Interestingly, there is no whisper in the grounds of detention as to whether the petitioner was arrested in the aforesaid FIR or not.”

Preventive detention is not akin to punitive detention and this fact cannot be overlooked by the constitution court, the Judge observed.

The court further observed: “There should be Sufficient material before the detaining authority to arrive at the satisfaction that having regard to the nature of activities, the detenue has been indulging in, it is necessary to prevent him from acting in any manner prejudicial to the security of the State.”

Court went on to observe that Safeguards, in the matter of preventive detention, provided in Article 22 of the Constitution of India and ingrafted in J&K PSA Act 1978 are required to be “scrupulously complied with.”

Pleadings of petitioner’s counsel suggested that his client was only served a copy of the detention order, not the material that led to the passing of the order- dossier.

This has apparently prevented the petitioner from making an effective representation against his detention order thereby violating his fundamental right guaranteed un Article 22 of the constitution of India.” …infraction of such right would vitiate the detention,” the Court observed.


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