J & K High Court quashes preventive detention of “stone pelter”

Jammu and Kashmir High Court: In the judgment delivered by the Bench of Tashi Rabstan, J., in the appeal against the order of District Magistratre, Baramulla, the Court allowed the petition and quashed the detention order against the detenu. The appellant was implicated in case FIR No. 266/2016 but was later granted bail. The detenu in compliance with the bail condition went to the police station when called again, where he was detained in case FIR No. 259/2016 and put in jail by the impugned detention order. Both the FIR’s related to detenu being responsible for organising anti-government protests and instigating the youth in Baramulla. He was also categorically said to be involved in voluntary stone pelting incidents in various areas of Baramulla.

The Court held that Article 22(3)(b) of the Constitution of India is only an exception to Article 21, further observing that fundamental rights are meant to protect the civil liberties of people and to prevent the misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and complied along with procedural safeguards, which is mandatory and vital. The respondents have not tendered explanation whatsoever as to why the order of detention has been issued after such a long delay of more than ten months from the date of the alleged criminal activity, which has been made edifice for satisfaction to pass the impugned order of detention and during the period of delay no fresh activity has been attributed to the detenu. The unexplained delay has snapped proximity of the detention order with the time its alleged requirement arose and also the detaining authority has not given any explanation for the delay in passing the impugned order of detention.

The Court relying on V. Shantha v. State of Telangana2017 SCC OnLine SC 623 held that 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 and to classify the detenu as a notorious stone pelter it is not sufficient to invoke statutory powers of preventive detention. [Ishfaq Ahmad Kumar v. State of J.K.,  2017 SCC OnLine J&K 724, decided on 29.11.2017]

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