Srinagar, June 24: At a time when Public Safety Act is being used as norm, the State High Court has described preventive detention as serious invasion of personal liberty.
After hearing arguments put forth by senior counsel Mian Abdul Qayoom in Ahsan Dar verses State of Jammu and Kashmir case, the High Court considered the arguments and observed the preventive detention unlike punitive detention or detention pending trial is based on mere suspicion nursed by the detaining authority if not the detainee is not detained he may indulge in activities that could endanger the very foundation of society.
The single bench comprising Justice Hassnain Masoodi observed in case of preventive detention there is neither any charge nor any trial and there is no determination of the guilt of detainee before he is placed under detention.
For these reasons, the Court observed the preventive detention laws have been held to be “repugnant to democratic constitution.” The Court however said the preventive detention laws though called sinister looking feature out of place in democratic constitution have become part of the statute book.
Explaining that the State could take recourse in bailable and non-bailable offences with some offences punishable life imprisonment or death, the Court considered the argument that it was always open to the law enforcing agencies to pursue the Court not to grant bail to the accused in custody. “The  accused who in the opinion of law enforcing agency may in the event of bail repeat the offences, thwart investigation or obstruct trial must be denied bail in the public interest instead of taking recourse to preventive detention law as the easiest course and slap preventive detention on a person already in custody on a criminal charge.”
The Court said the preventive detention law is not solution in itself. “It is an extraordinary response to an extraordinary situation. It is a short term measure and a person cannot be put under preventive detention endlessly or for a prolonged period of time.”
Coming to the Public Safety Act, the Court said the maximum period of preventive detention in cases where apprehended activities are prejudicial to the security of the State is 2-years and other cases it is one year.
The Court said the successive detention orders are permissible only on fresh facts and material arisen after the expiry of first detention order.
“In the event it becomes inevitable for the law enforcing agency to invoke preventive detention law, the constitutional and statutory safeguards are to be observed in letter and sprit without any failure,” the Court added. The Court   quashed the PSA of  Ahsan Dar, the former Chief Commander of Hizbul Mujahideen and ordered his immediate release. The HC held that that in the instant case, the failure on the part of detaining authority to supply the material relied at the time of making the detention order, renders the detention illegal and unsustainable.
Dar was arrested by Police Station Sumbal on January 14, 2009 and was booked under PSA. The order was quashed on  November 11, 2009. But he was not released  and second PSA was slapped on him.

Lastupdate on : Thu, 24 Jun 2010 21:30:00 Makkah time
Lastupdate on : Thu, 24 Jun 2010 18:30:00 GMT
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