To Classify Detenue As 'Notorious Stone Pelter' Not Sufficient To Invoke Preventive Detention Powers: J&K&L High Court

The Jammu and Kashmir and Ladakh High Court on Friday quashed a detention order passed against one Shabir Ahmad Malik as it noted that to classify the detenu as a 'notorious stone pelter' cannot be sufficient to invoke the statutory powers of the preventive detention.

Having perused the grounds of detention, the Bench of Justice Tashi Rabstan found no cogent explanation as regards the live-link between the prejudicial activities of the Detenue and the purpose of detention and as a result whereof, the impugned order of detention was quashed.

The case background

One Shabir Ahmad Malik (Detenue) had moved the High Court seeking a quashing of the order of preventive detention passed against him by the District Magistrate, Anantnag (respondent No.2) to prevent him from the activities which are prejudicial to the security of the State.

It was his contention that the cases mentioned in the grounds of detention had no nexus with the detenu as the cases/FIRs, heavily relied upon by the detaining authority to arrive at subjective satisfaction, were registered way back in the year 2013 and 2016.

It was also argued by the detenu that the detaining authority had not attributed any fresh activity which would have warranted passing of the order of detention and detaining authority had, in a mechanical manner, mentioned that normal law had not proved sufficient whereas his own grounds negate this contention.

It is also contended that the detaining authority had not furnished the relevant material, like the copy of the dossier, the order of detention, and the connected material as per the record furnished to the detaining authority by the police and relied upon by the detaining authority for passing the impugned order, etc.

Therefore, it was prayed that the detention order be quashed.

On the other hand, the contention of counsel for the respondents was that there are very serious allegations against the detenu as he had been creating a feeling of insecurity, pain, and fear in the minds of the general public and disturbing the peace and tranquility in the UT of J&K, especially in Anantnag.

It was further argued that the criminal cases are already going on against detenu under various provisions of the Penal Laws and if he is found guilty, he would be convicted and given an appropriate sentence. 

Court's observations 

At the outset, the Court observed that the detenu has a right, under Article 22(5), to be furnished with the particulars of the grounds of his detention, sufficient to enable him to make a representation, which on being considered may give relief to him.

"This Constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, and if the same has not been done, the detention cannot be held to be in accordance with the procedure established by the law within the meaning of Article 21," the Court further added. 

Further, stressing that preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial, the Court, in the light of the facts of the case, opined that the detention cannot be made a substitute for ordinary law and absolve the investigating authorities of their normal functions of investigating the crimes, which the detenu may have committed.

Regarding the argument of the counsel for the detenu that there was no live link between the prejudicial activities and the purpose of detention, the court concluded that there was in fact no cogent explanation coming forth from the perusal of the grounds of detention as regards live-link between the prejudicial activities and the purpose of detention.

The Court also stressed that preventive detention is not a quick alternative to normal legal process and that Preventive detention cannot be resorted to when sufficient remedies are available under the general laws of the land for any omission or commission under such laws.

Against this backdrop, referring to the facts of the case and while underscoring that to classify the detenu as a 'notorious stone pelter', cannot be sufficient to invoke the statutory powers of the preventive detention, the Court further observed thus:

"No doubt the offences alleged to have been committed by the detenu are such as to attract the punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to the preventive detention laws would not be warranted. The preventive detention involves the detaining of a person without trial in order to prevent him from committing certain types of offences." (emphasis supplied)

Consequently, the petition was disposed of, the detention Order was quashed and the respondents were directed to set detenu at liberty if not required in any other offence. 

Case Title - Shabir Ahmad Malik v. Union Territory of J&K and another

Case Citation: 2022 LiveLaw (JKL) 9

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