J&K Public Safety Act | Courts Cannot Substitute Decision Of Detaining Authority Taken As A Precautionary Measure To Protect Society: High Court

The Jammu and Kashmir and Ladakh High Court recently observed that the decision of a Detaining Authority under the J&K Public Safety Act cannot be substituted by the Court while scrutinizing the detention order. The observation came from Justice Sindhu Sharma: "The decision of the Detaining Authority cannot be substituted by the Court while scrutinizing the detention order. Since preventive detention is a precautionary measure to protect the society from activities which may cause harm to their life and liberty. Preventive detention is a precautionary measure to protect the society from the activities that are likely to deprive a large number of people of their rights and protect them from damaging to their life and property." The petition challenged an order for detention of Petitioner passed by the District Magistrate, Srinagar under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. It was alleged that the the grounds of detention have no nexus with the detenu and there is total non-application of mind. It was also alleged that the Petitioner not furnished the relevant material relied upon by the Detaining Authority enabling him to make an effective representation. The Court recorded that grounds of detention reveal that the detenue has been reported to have developed contacts with various terrorist/ secessionist organizations to carry out the activities of secessionism and has associated with terrorist organization TRF (the Resistance Force). The detenue was said to be providing all logistic support including transportation of arms from one place to another. The targets include street vendors, labourers from outside the State working at orchards, small shops commercial establishment so that cycle of terror is to create lawlessness and in order to stop the detenue from indulging in the above alleged activities and to take immediate preventive measures to protect the society from violence and social indiscipline and threat to the safety of the public. Court said that perusal of the record reveals that the detenu, at the time of detention as well as at the time of execution of the detention was provided all the material relied upon by the Detaining Authority. Further, the Detaining Authority, after considering the dossier submitted by the Senior Superintendent of Police and also considering the fact that the activities of the detenu are highly prejudicial to the security of the State, issued the order of detention. The detention was approved by the Government within time. "Personal liberty is one of the most precious rights guaranteed under the Constitution and a person cannot be deprived of his personal liberty except by procedure established by law. Article 22(5) of the Constitution provides for detention of person without formal charge, trial or sentence from a competent Court under the enactment of preventive detention law. The object of the same is to protect the society from activities which would deprive a large number of people from their life and personal liberty." Court said Court after perusing records and hearing both sides was of the opinion that the detention order does not suffer from any legal infirmity and grounds of detention are definite, proximate and free from any ambiguity and the detenu was duly informed of what weighed with the detaining authority while passing the order of detention. "The Detaining Authority after considering the material placed before it had arrived at the requisite 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 security of the State, therefore, there is no infraction of constitutional and statutory rights of the detenue. The Detaining Authority has arrived at its subjective satisfaction after considering all the material." In view of the above, the court dismissed the petition.Case Title: Faheem Sultan Gojree V/s UT of J&K and anotherCitation: 2022 LiveLaw (JKL) 113 Click Here To Read/Download Order

J&K Public Safety Act | Courts Cannot Substitute Decision Of Detaining Authority Taken As A Precautionary Measure To Protect Society: High Court

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