Preventive detention can’t be used to detain person in perpetual custody: High Court

Preventive detention can’t be used to detain person in perpetual custody: High Court
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Srinagar: The High Court Wednesday said that “preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial” even as it quashed the detention of two persons who were booked under the Public Safety Act (PSA).

Allowing their separate habeas corpus petitions, a bench of Justice Vinod Chatterji Koul directed the government to release forthwith from preventive custody Yasir Fayaz Rah of Rahpora, Khudwani, Qaimoh, Kulgam and Umar Fayaz Mir of Nadihal, Mir Mohalla, Bandipora provided they were not required in any other cases.

While Rah was detained by an order dated October 18, 2021, passed by District Magistrate, Kulgam, Mir was booked in terms of an order dated January 8, 2021, issued by District Magistrate Bandipora.

On behalf of the petitioners, counsels M Ashraf Wani and T H Khawaja argued that the detention orders were out of keeping with the provisions of law.

“It is interestingly evident that detaining authority has said that it is based on grounds of detention placed before him by the Superintendent of Police Kulgam that detaining authority is satisfied to place the detainee under preventive detention,” the court said quashing Rah’s detention.

“It is important to mention here that detaining authority may get inputs from different agencies, including the Superintendent of Police concerned, but the responsibility to formulate grounds of detention exclusively rests with detaining authority,” the court said.

The court pointed out that it was the detaining authority that had to go through reports and other inputs received by them from the concerned Police and other agencies and on such perusal arrive at a subjective satisfaction that a person was to be placed under preventive detention.

“It is, therefore, for detaining authority to formulate grounds of detention and satisfy itself that grounds of detention so formulated warrant passing of the order of preventive detention,” the court said.

However, the court pointed out that in the instant case it was evident from the order of detention that grounds of detention had not been prepared by the detaining authority and resultantly the order was vitiated.

Quashing detention of Mir, the court said: “Preventive detention involves detaining a person without trial to prevent him from committing certain types of offenses. But such detention can’t be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detainee may have committed. After all, preventive detention can’t be used as an instrument to keep a person in perpetual custody without trial,” the court said while citing the Supreme Court’s decisions.

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