HC: Detention Orders valid even if only single instance of Breach of Peace order is alleged

  

The Jammu and Kashmir High Court has recently upheld the preventive detention order holding that where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.

The single-Judge Bench of Justice Tashi Rabstan observed:

"Although right of personal liberty is most precious right, guaranteed under the Constitution, which has been held to be transcendental, inalienable and available to a person independent of the Constitution, yet the personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. "

He made the case that a person must not be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India, 1978 Latest Caselaw 16 SC is to be just and fair.

It was the the case of the petitioner-detenu that he has been implicated in false and frivolous FIRs and that the detaining authority has issued the detention order without application of mind by not mentioning that he was already in custody in FIR.

He contended that while slapping preventive detention of detenu has not adhered to the constitutional safeguards available to him under the Constitution of India as well as the J&K Public Safety Act, 1978.Further, it is contended that the detenu has already made a representation against his detention; however, the respondents have not intimated him about the fate of his representation. It is also averred that the allegation with regard to the association of petitioner, as alleged in the grounds of detention, as well as the status of FIRs, which have been made basis for issuing the detention order, have not been disclosed. Even the material documents relied upon by the respondents, upon which the detention order has been issued, have not been supplied to the petitioner-detenu.

On the other hand, Respondent averred that the petitioner-detenu falls under the category of being a threat to the public order, peace and stability in the society, thus, falls under the category of Section 8 of the Public Safety Act and relied on SC Judgement in Union Ministry of Finance Vs. Dimple Happy Dhakad, 2019 Latest Caselaw 569 SC

High Court Observation

The Court on the outset after examining all the records and paying heed to submissions of both the parties noted that the petitioner is indeed a habitual offender and has been creating a sense of alarm and feeling of insecurity in the minds of people in the area, causing a chronic fear among them.

"The petitioner-detenu seems to be a hard core criminal and has become a terror figure among the people of the area as against him nine FIRs came to be registered in different police stations under various sections of the IPC between the period 2015 to the year 2021. Since the actions taken against the petitioner-detenu under the ordinary law from time to time have not been proved to be deterrent, as such the respondents had no other option but to keep him in preventive detention"

Stating that the aim of Article 22 is to to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty, the Court observed:

"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. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, 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."

 Citing SC Ruling in Haradhan Saha vs State of W.B., 1974 Latest Caselaw 150 SC the Court stated that the essential concept of preventive detention 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.

"There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case, a person is punished to prove his guilt and the standard is proof, beyond reasonable doubt, whereas in preventive detention a man is prevented from doing something, which it is necessary for reasons mentioned in the Act, to prevent."

The Court quoted Sophocles and said, "Law can never be enforced unless fear supports them."

"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. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent and gravity depending on the nature and impact of such deleterious activities on the society. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. 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. 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 also held that a single act was sufficient enough for detention if it's shown that such single act warrants an interference that he will repeat his activity in the future too. The Court cited SC Judgements in Debu Mahato v. State of W.B.

The Court commened on the purpose of J&K Public Safety Act, 1978, and said it is designed to prevent, they are all these acts that are prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level ramifications. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in tumultuousness. They are not like ordinary law and order crimes.

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(With input from news agency language)

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