9 May 2023 8:31 AM GMT
The Jammu and Kashmir and Ladakh High Court has recently ruled that being detained under the Public Safety Act cannot be considered an arrest for committing an offence under the penal law. Instead, it is a preventive measure to avoid any possible harmful act from the detained person based on their background and therefore, there is no requirement to produce the detainee before a...
The Jammu and Kashmir and Ladakh High Court has recently ruled that being detained under the Public Safety Act cannot be considered an arrest for committing an offence under the penal law. Instead, it is a preventive measure to avoid any possible harmful act from the detained person based on their background and therefore, there is no requirement to produce the detainee before a magistrate within 24 hours, it clarified.
The observations were made by Chief Justice Kotiswar Singh and Justice Puneet Gupta while hearing an LPA in terms of which the appellant had challenged an order dated 12th November 2021 passed by the Single Judge by which the petition filed by the petitioner-appellant challenging his detention in terms of Section 8 of the J&K Public Safety Act was dismissed.
In his plea the counsel for the appellant had submitted that the detention order was vitiated for the reason that the same was not executed as per law as Section 9 of the Act provides that “detention order may be executed at any place in the manner provided for the execution of warrant of arrest under the Code” and the “Code” has been defined under Section 2 (1) of the Act as to mean the “Code of Criminal Procedure Samvat 1989” and unless the detention order is executed in the manner as contemplated under the Criminal Procedure Code (CrPC), the same cannot be said to have been validly executed.
The appellant argued that according to Section 76 of the CrPC, a person arrested must be brought before the Magistrate within 24 hours. However, in this case, the detention order was executed by a Sub-Inspector of Police instead of the District Magistrate, who is the required detaining authority and the District Magistrate could not have delegated their authority to a Sub-Inspector and this has vitiated the order.
Further, as required under Section 76 of CrPC, the detenu was required to be produced before the nearest Magistrate within 24 hours or to the person who is issuing the detention order. But in the present case, the appellant was neither produced before the District Magistrate nor before the person who has issued the detention order, and hence there is total violation of the provisions of Section 76 of the CrPC which is required to be followed in terms of Section 9 of Public Safety Act, it was argued.
Adjudicating upon the matter the bench observed that the contention of the appellant that the detention order was not validly served consonant with Section 76 of CrPC, is misplaced.
"The detention of a person under the Public Safety Act does not amount to arrest for commission of any offence under a penal statute but a preventive act to thwart any potential prejudicial act on the part of the person detained based on his antecedents and as such producing such a detenue before a Magistrate within 24 hours does not arise", the bench explained.
Elaborating further on the matter the court said that the detention order was issued by the detaining authority, i.e., the District Magistrate and as such executing the detention order by a Sub-Inspector on the strength of the detention order passed by the District Magistrate would not in any way affect the validity of the detention order.
Considering the legal position and finding no justification in the other arguments put forth by the appellants, the court refused to intervene in the matter and ultimately dismissed the appeal.
Case Title: Muntazir Ahmad Bhat Vs UT of J&K.
Citation: 2023 LiveLaw (JKL) 113
Counsel For Petitioner: Mr. Junaid Rashid, Adv. &Mr Bakht Parvaiz, Adv
Counsel For Respondent:
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