[Preventive Detention] Personal liberty most cherished fundamental right: Jammu and Kashmir High Court frees detenue

The Jammu & Kashmir and Ladakh High Court recently quashed a preventive detention order passed against a man who was kept in jail on the ground that he was a hardcore criminal who terrorised people in Jammu [Sarpreet Singh vs Union Territory of J & K].Justice Mohammad Akram Chowdhary observed that personal liberty is a most cherished of freedom. "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," the single-judge noted. The order stated that in democracies with rule of law, 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 was hearing a petition filed by one Sarpreet Singh challenging the preventive detention orders passed against him by the Jammu Superintendent of Police.Singh 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 claimed that the detaining authority did not not attribute any specific allegation for detaining him.Singh argued that he was incapacitated in filing a representation against the orders as he was not informed about the grounds of detention in a language that he could understand. He claimed that he only understood Dogri language but the authorities explained the grounds in English and Hindi. He pointed out that the detention orders were passed when he was already in custody in connection with a criminal case and 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 is let free, there was every likelihood of him re-indulging in 'scaring and terrorising' the people of the area, as he is a hardcore criminal. The officer stated that Singh's detention under preventive law is only to keep him at bay as a precautionary measure, and not as punishment. Justice Chowdhary at the outset noted that the detention cannot be sustained since Singh 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..Advocate Jagpaul Singh appeared for the petitioner. Additional Advocate General Amit Gupta appeared for the State. .[Read Judgment]