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Jammu & Kashmir HC: Personal Liberty is a most Cherished of Freedom

2 min read

Shivani Thakur

Published on: April 8, 2022 at 19:00 IST

The Jammu & Kashmir and Ladakh High Court recently Quashed a Preventive Detention Order passed against a man who was kept in Jail for terrorised people in Jammu.

Personal Liberty is one of the most cherished Freedoms, perhaps more important than the other Freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the Power of the State to detain a person without Trial, which may otherwise pass the test of Article 21, by humanising the harsh Authority over Individual Liberty,Justice Mohammed Akram Chowdhary noted.

The Order stated that in democracies, the power to detain someone on Grounds of National Security or Public Order must be strictly interpreted.

“However, 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 Court added.

The High Court hearing a Petition challenging the Prevention Detention Orders passed against Sarpreet Singh by the Jammu Superintendent of Police.

He contended that the Detention Order was in Breach of Article 22(5) of the Constitution and the Provisions of The Jammu & Kashmir Public Safety Act, and sought Quashing of the same.

He argued that he was incapacitated in filling representation against the Order. He claimed that he understood only Dogri language but the Authorities explained everything in English and Hindi. He said that the Order was passed when he was already in Custody thus there was no Application of mind by the Authorities.

The Superintendent of Police in his Affidavit stated that the Order was passed for Maintenance of ‘Public Order’ and if he let free there was every likelihood of him re- indulging in ‘Scaring and Terrorising’ the people of the area.

Justice Chowdhary noted that the Order cannot be sustained because he was already in Custody when the same was ordered.

Here is a Case where Detenue was stated to be under Detention in a Criminal Case and the Order of Detention despite that was executed, depriving the Detenue to avail Remedy of Filing representation to the Detaining Authority within Statutory Period. The non-application of mind of the Detaining Authority is also Explicit from the fact that even the Detention order does not say anything with regard to the Detention of the Detenue in a Criminal Case, leaving apart to assign the compelling reasons to resort to Order Preventive Detention,” the Court said.

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