Excelsior Correspondent
SRINAGAR, Aug 6: The High Court has held that preventive detention (PSA) cannot be used as an instrument to keep a person in perpetual custody without trial and cannot be made a substitute for the ordinary law and absolve investigating authorities of their normal functions of investigating crimes.
Justice Tashi Rabstan while referring to the recent Supreme Court ruling said the ‘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.
“It may not be out of place to mention here that preventive detention is not a quick alternative to normal legal process”, court of Justice Tashi recorded while referring to the Supreme Court judgment.
Court said that to classify the detenu as a ‘disgruntled element’ cannot be sufficient to invoke the statutory powers of preventive detention. “No doubt the offences alleged to have been committed by detenu are such as to attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted”, read the judgment
Observing that preventive detention of a person by a State after branding him a ‘goonda’ merely because the normal legal process is ineffective and time-consuming in ‘curbing the evil he spreads’, is illegal and that detention of a person is a serious matter affecting the liberty of the citizen.
Passing detention against a person on the saying that recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the preventive detention Act as an extreme measure to insulate, is affecting the liberty of the citizen.
“Preventive detention involved detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve investigating authorities of their normal functions of investigating crimes, which detenu may have committed”, Justice Tashi said adding with “After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial”.
Court has quashed the detention order of one Kaiser Ahmad Bhat of Nawa Kadal, Srinagar, passed by District Magistrate Srinagar as also its three extension orders and directed the authorities to set the said person free.
Court however, made it clear that the preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of three months, or any other period(s), is a punishment of that particular period’s imprisonment.
“Preventive detention is often described as a ‘jurisdiction of suspicion’, the detaining authority passes the order of detention on subjective satisfaction”, court said.
After perusal of the file as also record, court said the same revealed that Senior Superintendent of Police, Srinagar, vide no.Lgl/Det-2983/2016/6092-95 dated 5th October 2016 had produced material record, such as dossier and other connecting material in respect of detenu has not been furnished to him as required under law, so as to enable him to make an effective and meaningful representation against his detention and “failure to supply such material/documents, amounts to violation of Article 22(5) of the Constitution of India”, read the judgment.
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