District Magistrate Cannot Describe Period Of Preventive Detention, Govt's Prerogative To Do The Same : JKL High Court

The Jammu and Kashmir and Ladakh High Court recently observed that a District Magistrate while passing the order of detention cannot describe the period of detention of the detenue, because it is the Government which after approving the detention provides the period till the detenue would be detained.

A bench comprising Justice Wasim Sadiq Nargal observed,

"Section 17(1) of J & K Public Safety Act empowers the Government to confirm the detention order and may direct the continuation of the detention of a person concerned for such period as it thinks fit. Section 18 of the J&K Public Safety Act states that the maximum period of detention of the detenue is subject to the confirmation of Advisory Board".

Reliance was placed upon Jahangir Ahmad Khan v. State and others, whereby the High Court held that the District Magistrate had erred in himself fixing the period of detention as 24 months while issuing the detention order because the period of detention has to be fixed by the Government on confirming the action of the District Magistrate.

The observations were made while dismissing a plea of habeas corpus filed by the petitioner in terms of which the petitioner was seeking quashing of the impugned detention order on several grounds.

The main assertion of the counsel for petitioner was that the material, relied upon by detaining authority for issuance of impugned order of detention, was not furnished to detenue as at the time of passing of impugned order of detention, the detenue was already in police custody.

Justice Nargal observed that the detenue has been "uncontrollable" despite having been framed in nine different FIRs allegedly for committing various serious and heinous offences. "Detenue instead of mending his ways has continuously been indulging in criminal activities and has not shown any respect for law of the land...The detailed grounds of detention and the records referred to the Detaining authority were sufficient to derive satisfaction as regards the detention of detenue under the provisions of the Act. Thus, the order does not appear to be suffering from non-application of mind," it added.

Deliberating on the other ground of challenge by the petitioner that there was gross failure of application of mind by the detaining authority to the fact that the petitioner/detenue was already under arrest when the detention order was passed, the bench elucidated that there is no bar in passing a detention order even against such a person, if the detaining authority is subjectively satisfied from the material placed before it that a detention order should be passed.

Further underscoring the balance that the needs to be stuck between individual liberty and the collective rights of a society the bench observed,

"Individual liberty is the most valuable and cherished right recognized by the Constitution. The right of society as a whole is, from its very nature, of much greater importance than that of an individual. In case of conflict between the two rights, the individual's right is subjected by our Constitution to reasonable restrictions in the larger interest of the society. By providing for preventive detention the framers of the Constitution have recognized certain restraints on the right to individual liberty and in certain cases the individual liberty is required to be subordinated to the larger social interest".

Case Title : Royal Singh Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 255

Coram : Justice Wasim Sadiq Nargal

Counsel For Petitioner : Mr. K S Johal, Sr. Advocate with Mr. Supreet Singh Johal, Advocate Mr. D S Saini, Advocate

Counsel For Respondent : Mr Pawan Dev Singh DyAG

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