Srinagar: Life and liberty of the citizens are of paramount importance and a duty is cast on the shoulders of the Court to enquire that the decision of the Executive is made upon the matters laid down by the Statute and that these are relevant for arriving at such a decision, the Jammu and Kashmir High Court has said while quashing detention order by Deputy Commissioner Bandipora.
“A citizen cannot be deprived of personal liberty guaranteed to him/her by the Constitution and of which, he/she cannot be deprived except in due course of law,” a bench of Justice Rashid Ali Dar said while quashing the PSA detention order against Bilal Ahmad Ganie, a resident of Bandipora.
“Further custody of (Bilal Ahmad Ganie) shall be governed in accordance with the orders as shall be passed by the court of competent jurisdiction in the criminal cases registered against him,” the court added.
Bilal had challenged detention order mainly on the grounds that the detaining authority has failed to apply its mind to the fact whether his preventive detention was imperative notwithstanding the fact that he was already in custody.
“Perusal of the detention records reveals that has been shown involved in FIR No.23/2018 registered at Police Station Aragam and FIR No.58/2018 P/S Bandipora. The arrest of the detention in connection with criminal cases, at the time of passing of impugned order of detention, has not been disputed by the respondents in the counter affidavit,” the court observed, adding, “Since the detenue (Bilal) was in the custody of the police at the time of passing of the order of detention, therefore, question arises for consideration whether an order of detention could be passed on the face of such an eventuality? The answer to this question is emphatically “No”.”
Testing the instant case on the touchstone of the law, the court said that Bilal could not have been detained after taking recourse to the provisions of the Public Safety Act when he was already in the custody of the police authorities in the cases. “His custody in police for the offences referred in the grounds of detention, has been converted into the custody under the impugned detention order. May be the detaining authority might have been laboring under the belief that the detenue applies for bail, he may succeed in seeking his release but this apprehension of the detaining authority could have been guarded against by resisting and opposing the bail application. In the event of his release on bail, the State could have exercised its right to knock at the doors of higher forum,” the court said, adding, “This single infraction knocks the bottom out of the contention raised by the State that the detenue can be detained preventatively when he is already in custody and has not applied for bail. It cuts the very root of the State act. The State could have taken recourse to the ordinary law of the land.”
