Procedure Established By Law Is To Be Followed With Due Diligence: J&K&L HC While Striking Down A Preventive Detention Order
The Jammu and Kashmir and Ladakh High Court, Jammu in a preventive detention case, while reprimanding the act of the District Magistrate, has held that the procedure established by law is to be followed with due diligence and accountability.
A Single Bench of Justice Rahul Bharti said, “If by any act of omission or commission on the part of a citizen of India which warrants deprivation of his fundamental rights in accordance with the procedure established by law then that procedure so established by law is to be followed with due diligence and accountability and not by default mode of application as has been done in the present case by the District Magistrate, Ramban (UT of Jammu & Kashmir) followed by the Govt. of UT of Jammu & Kashmir.”
The Bench further held the preventive detention of the petitioner as inherently illegal.
Senior Advocate K.S. Johal and Advocate Supreet Singh Johal represented the petitioner while Sr. AAG Monika Kohli represented the respondents.
In this case, the Senior Superintendent of Police (SSP) came forward with a communication thereby putting up a dossier before the District Magistrate for seeking slapping of preventive detention under the Jammu and Kashmir Public Safety Act, 1978 against the petitioner. The SSP came forward with a narration that the petitioner was the younger brother of a militant and was in contact with the militant organisation LET whose founder was Saifullah Sajid Jatt Al-Maroof from Pakistan.
The apprehension of the SSP was that the petitioner may provide information regarding the sensitive matters of UT to his brother and as such the activities of the petitioner came to be perceived harmful and prejudicial for the peace, prosperity, integrity, and tranquillity. The District Magistrate felt satisfied and persuaded to reckon the petitioner thereby directing him to be detained and lodged in a jail.
The High Court in the above context observed, “There can be no better prologue to this judgment than the echoing words of Greek philosopher Plato, “The worst form of injustice is pretended justice.” … The present case is a live exhibit of that lapse of vigilance and diligence on the part of the government/public authority which has come to subject the petitioner to suffer preventive detention for a period lasting up to three months in the first instance reckoning from 21/03/2023 of the preventive detention arrest of the petitioner.”
The Court noted that with such a serious infirmity eroding the detention order and consequent Govt. order, the entire prevention detention exercise with respect to the petitioner collapses under its own weight.
“… the petitioner is a person whose activities are seriously positioned against the maintenance of public order looses it purported appeal and impression for this Court to register and bail out the flawed detention order of the District Magistrate Ramban against the petitioner. The petitioner, as being a citizen of India, has equal stakes in the impartiality of a judgment of constitutional court to see obvious facts without allowing any escape”, said the Court.
The Court further noted that the preventive detention jurisdiction is sourced to Article 22 of the Constitution of India and that such jurisdiction of constitutional character is meant to be exercised by the government/public authority with a corresponding heightened consciousness of the constitutional principle and spirit under which a constitutional trust has been delegated to the government/public authority that fundamental rights of a citizen of India are meant to be honoured, protected, and preserved because those rights are the first and last possession of a citizen of India which the Constitution has ensured to him.
Accordingly, the Court set aside the preventive detention order.
Cause Title- Ashfaq Ahmed v. UT of J&K and Ors.
