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Quashing the preventive detention order against one Shabir Ahmad Malik, the Jammu and Kashmir and Ladakh High Court last week said that classification as a notorious stone pelter cannot be sufficient to invoke statutory powers of preventive detention.

On State Counsel’s submission that there were several criminal cases pending against Malik as he had been creating a feeling of insecurity, pain and fear in the minds of the general public and disturbing the peace and tranquility in the UT of J&K, the bench of Justice Tashi Rabstan said,

“Maybe, offences allegedly committed by detenu attract the punishment under the prevailing laws but that has to be done under the prevalent laws…The detention cannot be made a substitute for ordinary law and absolve the investigating authorities of their normal functions of investigating the crimes, which the detenu may have committed.”

“After all, the preventive detention cannot be used as an instrument to keep a person in the perpetual custody without trial,” court added.

Malik had moved the High Court against the detention order passed by the District Magistrate, Anantnag in order to prevent him from the activities which are prejudicial to the security of the State.

It was his contention that the cases mentioned in the grounds of detention had no nexus with him as to arrive at subjective satisfaction, the detaining authority had relied upon cases/FIRs were registered way back in the year 2013 and 2016.

It was also alleged that the detaining authority had not furnished the relevant documents to Malik to enable him to make an effective representation by giving his version of facts attributed to him, therefore, Malik’s constitutional right guaranteed under Article 22(5) of the Constitution was infringed.

On the contrary, highlighting the criminal cases pending against Malik’s, the State counsel had argued that the criminal cases are already going on against Malik and if found guilty, he would be convicted and would be awarded appropriate sentence.

Taking note of these rival submissions, court noted that the detenu has a right, under Article 22(5), to be furnished with the particulars of the grounds of his detention, sufficient to enable him to make representation, which on being considered may give relief to him.

Further, stressing that preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial, Court quashed the detention order against Malik and directed the respondent authorities to set him at liberty if not required in any other offence.

Case Title: Shabir Ahmad Malik v. Union Territory of J&K and another