Srinagar, Mar 4: In a significant judgment, the State High Court today refused to quash the Public Safety Act (PSA) of a militant by saying that it has been designed to prevent people from the activities which are prejudicial to security of the State or maintenance of public order.
The Court dismissed the petition of a militant challenging his detention order under the PSA. “For the reasons discussed, the petition fails and is, accordingly, dismissed”, the judgment given by Justice Tashi Rabstan reads.
The District Magistrate Srinagar last year passed detention order (bearing No.DMS/PSA/33/2016 dated September 10 last year) of Bilal Ahmad Dar son of Ghulam Nabi Dar resident of Wussan Kahaie Pattan of district Baramulla under Public Safety Act (PSA) for being a militant from whose possession arms and ammunition was recovered by police.
The District Magistrate, in his report, said that Dar joined a militant organization and indulged in illegal activities to carry out nefarious designs. His report further states that he and his associates on July 30 last year came to Srinagar to carry out attacks on security forces and to create large scale law and order problem by inflicting attacks on security forces.
“Dar, however, on reaching Shireen Bagh, Karan Nagar, along with his associate was arrested and arms and ammunition including one AK-47 rifle, 3 AK-47 magazine, 60 round AK-47 ammunition, one Pistol, one pistol magazine, 5 rounds of pistol ammunition and one hand grenade was recovered from his possession. An FIR (No.100/2016 under Section 7/25 Indian Arms Act) was registered in Police Station SafaKadal against him”, read the DM’s report.
“This act is sufficient to prevent detnue from indulging in such prejudicial activities that has direct bearing on our society”, court said after going through the grounds of detention of Dar.
Court on right of personal freedom of a person said it is most precious right guaranteed under the Constitution and as such a person is not to be deprived of his personal liberty, except in accordance with procedures established under.
The court said the personal liberty may be curtailed where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. “Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt”, judgment read.
However, court on detaining a person if his activities are prejudicial for security said, the framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. “Article 22(5) Constitution of India therefore leaves scope for enactment of preventive detention law”, judgment read.
“Its aim and object is to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property”, Justice Tashi said.
Court on importance of preventive detention said the essential concept of it is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.
“The basis of detention is the satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same”, read the judgment.
Court on upholding the dignity of law said that every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. “It has to be kept in mind that law is antagonistic to any type of disarray. It is completely intolerant of anarchy. If anyone flouts law, he has to face the ire of law, contingent on the concept of proportionality that the law recognizes”, Justice Tashi said.
“Acts or activities of individual or a group of individuals, prejudicial to the security of the State, have magnitude of across-the-board disfigurement of societies. No court should tune out such activities, being won over by passion of mercy” court said.
“It is the obligation of the court to constantly remind itself the right of society is never maltreated or marginalised by the doings an individual or set of individuals propagate and carry out”, the court order read.
Court has also made it clear that the Detaining Authority has narrated facts and figures that made the authority to exercise its powers under section 8, J&K Public Safety Act 1978 and record subjective satisfaction that the detenu was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the maintenance of security of the State.
In the petition the contention is that the grounds of detention are vague and the cases mentioned in grounds of detention has no nexus with detenu and have been fabricated by police in order to justify its illegal action of detaining detenu. It is also mentioned in the petition that detaining authority has mentioned a single FIR in the grounds of detention for slapping preventive detention upon detenu.
Court on significance of PSA said it has been designed to prevent one from all those activities which are prejudicial to security of the State or maintenance of public order.
In the meantime, in another order, High Court while holding detention orders passed by the authorities as ambiguous, vague, uncertain and hazy quashed them and directed the authorities to release the detenues from the custody.
“For the reasons discussed above, the petitions are allowed and detention orders passed by District Magistrate, Pulwama, Shopian, Kulgam and Baramulla are quashed. Resultantly, the respondents are directed to release the detenues from preventive detention”, directed Justice Tashi Rabstan.
Court while quashing detention orders of five persons involved in stone pelting and provoking youth for creating law and order problem, said the grounds of detention that constitute basis for detention orders are ambiguous, vague, uncertain and hazy.
Those whose detention orders were quashed are Manzoor Ahmad Lone of Lelhar, Kakpora-Pulwama, Hilal Ahmad Itoo of Rajpora-Pulwama, Mohd Lateef Dar of Zawoora-Shopian, Zahid Ahmad Nengroo of TuliNowpora-Kulgam and Mohammad Yousuf Sheikh of Iqbal Nagar, Sopore- Baramulla.