Srinagar: The High Court of J&K and Ladakh on Monday held that in a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State must be strictly construed.
Justice M A Choudhary while overturning the detention order passed by the district magistrate Rajouri against one Mohd Iqbal recorded that the detention order has been passed on a reference of two criminal cases- one registered in the year 2003 and other in the year 2006, after a gap of more than 19 years which cannot be a ground for invoking the detention order in the year 2024.
“there being no live link or proximity, the order is not sustainable before law,” court said while giving a reference to Supreme court judgment in Ameena Begum v. State of Telangana and others, where Court had observed that a detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.”
Justice M A Choudhary said that having regard to the facts that firstly whole of the record particularly copy of FIR of the year 2006 was not provided to the detenue which is even not available on record produced by the respondents , secondly, there is an unexplained and inordinate delay in execution of the detention warrant and thirdly the absence of live and proximate link to the activities attributed to the detenue in the year 2003 and 2006.
“In this backdrop, it is established that the detaining authority has passed the detention order mechanically in an arbitrary manner, without application of mind and is, thus, vitiated being liable to be quashed,” court said.
“Accordingly, Petition is allowed and the order of detention bearing No. DMR/INDEX/11 of 2024 dated 06 November, 2024 passed by District Magistrate, Rajouri, is hereby quashed. The detenue- Javed Iqbal, S/O Gulab Hussain Qazi, R/O Ward No.01, Qazi Mohalla Behrote, Tehsil Thannamandi, District Rajouri is directed to be released from the preventive custody forthwith, if not involved in any other case(s),” court directed and said.
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