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Shahid Muneeb Mir Vs. State of J&K and Ors. - (High Court of Jammu and Kashmir) (30 Nov 2018)

Preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial



Impugned in present petition is Order passed by District Magistrate, Respondent No. 2, whereby "detenu", has been placed under preventive detention. Learned counsel for Petitioner states that detenu was arrested by police station from his home on 17th July, 2018 and was implicated in case FIR No. 49/2018. Bail was granted in favour of detenu on 23rd July, 2018, by learned Judicial Magistrate 1st Class. However, detenu was not released and was implicated in another case, bearing FIR No. 142/2017. The detenu applied for bail, which was granted on 3rd August, 2018, but he was not released and was kept in custody for several days. He has also vehemently stated that, allegation reflected in grounds of detention are vague and do not justify passing of detention order.

Personal liberty is of the widest amplitude covering a variety of rights. Its deprivation shall only be in accordance with procedure prescribed by law conformable to mandate of the Supreme Law, the Constitution, more particularly to Article 21 thereof. Of all fundamental rights, conceded to citizens under the Constitution, right of personal liberty is most cherished. A person is not to be deprived of this right except in accordance with the procedure laid down by law, even if he be a man of the most desperate character.

Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided, against improper exercise of power, must be jealously watched and enforced by the Court. Article 22(3)(b) of the Constitution of India, which permits preventive detention, is an exception to Article 21 of the Constitution. An exception cannot, ordinarily, nullify full force of the main rule, which is the right to liberty guaranteed under Article 21 of the Constitution. An exception can apply only in rare cases. The imposition of what is, in effect, a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with the ordinary concepts of the rule of law. The law of preventive detention can only be justified by striking the right balance between individual liberty on the one hand and the needs of an orderly society on the other.

In the present case, averment of learned counsel for respondents is that there are very serious allegations against detenu as he has always been in the lead role in stone pelting incidents and has been creating law and order problem in the area of Achabal, Anantnag, and its adjacent areas and in order to accomplish antisocial agency, he resorted to stone pelting. And in this connection, various criminal cases are already going on against detenu under various provisions of Ranbir Penal Code and if he is found guilty, he will be convicted and given appropriate sentence. Maybe, offences allegedly committed by detenu attract punishment under prevailing laws but that has to be done under prevalent laws and taking recourse to preventive detention laws would not be warranted. Preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial.

Preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial. Detention Order passed by District Magistrate was quashed. Respondents were directed to release the detenu, provided he is not required in any other case. Petition Disposed off.


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