Preventive detention cannot be invoked to keep a person in perpetual custody without trial, rules J&K High Court


Ordering release of a man detained for being a ‘notorious stone pelter’, the Jammu and Kashmir High Court on Thursday observed that prevention detention laws cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed.

Ishfaq Ahmad Kumar had allegedly lead role in stone pelting incidents and has been creating “law and order problem” in old town and its adjacent areas and in order to accomplish antisocial agency, he resorted to stone pelting and turned into a notorious stonepelter.

The District Magistrate, Baramulla, invoking his powers under clause (a) of Section 8 of the J&K Public Safety Act, 1978, placed him under preventive detention and directed his lodgement in Central Jail. The said detention order was challenged before the Srinagar Bench of the High Court.

“No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted,” Justice Tashi Rabstan said observing that preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial.

The court also observed that the authorities have not tendered explanation whatsoever as to why order of detention has been issued after such a long inasmuch as there is delay of more than ten months from the date of alleged criminal activity, which has been made edifice for satisfaction to pass impugned order of detention and during the period of delay no fresh activity has been attributed to detenu. The court also quashed the detention order on the ground that delay caused in issuing the order of detention has not been explained.

“In fact, no reason has been assigned at all by detaining authority while passing impugned order of detention, which vitiates impugned order of detention,” the court said.


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