‘preventive detention curtails human right if not passed with caution,’HC of J&K rules out

Srinagar: The High Court of J&K and Ladakh on Wednesday ruled out that preventive detention needs to be passed with great caution by detaining authority as it curtails most valuable and inherent human right of a detainee.

Justice Mohd Yousuf Wani quashed the detention order of one Sahil Chunka of Srinagar by mentioning that there is no proximate link shown by the detaining authority of the alleged acts that led to the registration of case FIR No. 37/2021 with Police Station, Nowhatta and the need for issuance of the detention, order with a gap of more than three years. 

Justice Wani recorded that an earlier detention order against the detainee was revoked by the Respondents. 

“In support of the alleged strong apprehensions/inputs against the detenu, no overt activity has been referred to by the detaining authority,” court said.

Justice Wani noted that while reading the grounds of detention and the police dossier in juxtaposition, the former appear to be the replica of the later. 

“An application of mind necessarily involves some independent corroboration by the detaining authority of the contents of the police dossier from its own sources,” court observed and recorded.

Court said the preventive detention needs to be passed with great care and caution keeping in mind that a citizens most valuable and inherent human right is being curtailed. 

“The arrests in general and the preventive detentions in particular are an exception to the most cherished fundamental right guaranteed under Article 21 of the Constitution of India.”

It was recorded that the provisions of Clause (5) of the Article 22 of the Constitution, together with the relevant provisions of the Section 8 of PSA requiring for application of mind, subjective satisfaction, inevitability of the detention order, proper and prompt communication of the grounds of detention and the information of liberty to make a representation against the detention order, are the imperative and inevitable conditions rather mandatory requirements for passing of a detention order.

“For the foregoing discussion, court said that it may meet the ends of justice in case the detention order bearing No. DMS/PSA/35/2024 dated 18th November 2024, issued by the district magistrate Srinagar is quashed and the petitioner/detenu is ordered to be released from his preventive detention, provided he is not involved or required in any other case,” court said and directed.