Excelsior Correspondent
Srinagar, Aug 27: High Court today came down heavily on Government for passing the detention order of hardline Hurriyat Conference leader, Masrat Alam, under Public Safety Act (PSA) without following due process of law.
Court while quashing the detention of Alam under PSA directed the authorities to release him from the impugned preventive detention saying that the preventive detention is undemocratic and repugnant to rule of law.
“It violates fundamental principle of Criminal Jurisprudence, providing for presumption of innocence of accused till he is proved guilty on a fair and transparent trial” the court said adding ” that it not only runs contrary to Constitutional ethos but also bruises the Gandhian thought, that forms weft and warp of out social-political fabric”, says Justice Masoodi in his judgment.
Court further said that constitution does not directly provide preventive detention but leaves for a law providing for such detention. “The purpose is that whenever such a law is enacted, it goes through legislative filtration and every effort is made to make it as far as possible fair, just and reasonable for detenue held in custody without trial and at least, safeguards guaranteed under Article 22”, court said.
Court therefore held that whenever the detention order is made, court called upon to examine it that whether the step taken by detaining authority is an extraordinary step curtailing liberty of detenue and “therefore, is to pass strict test of total conformity with constitutional and statutory mandate”, court observed.
Court made it clear with regard to slapping detention on some one should be treated as temporary or transitory tool and whenever detenue is involved in a substantive offence, criminal case is registered or charge sheet is pending against him, ordinary law is to be given a chance.
Court while quashing the detention of Alam said that whenever and wherever a person is arrested in a substantive offence, course open to law enforcing agency is to take recourse to ordinary law and in the event it is satisfied that accused may repeat offence, obstruct investigation, tamper with evidence likely to be collected and produced against him during trial or give slip to law.
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