Early Times Report
srinagar, Nov 29 :Underlining that procedural and other safeguards available to the detaining authority have to be respected and adhered to while ordering preventive detention, the state high court has ordered release of a person from the detention forthwith.
A division bench of Justice Mohammad Yaqoob Mir and Justice Ali Mohammad Magrey ordered authorities to release Naseer Ahmad Pandit, who was last year taken under preventive detention, forthwith if not required in connection with any other case.
Naseer's petition against the detention order was dismissed by court's single bench on April 25 this year and he challenged it before the division bench through his counsels.
"Keeping in view the hallmark of the cherished right to liberty in keeping with Article 21 of the Constitution of India, while exercising power to order preventive detention, various procedural and other safeguards available have to be respected and adhered to," the bench observed, adding that it was the bounden duty of the detaining authority to derive subjective satisfaction before passing the order of detention. "If record suggests that there is non-application of mind, that ipso facto means that subjective satisfaction is missing," the court said while setting aside its single bench judgment and quashed order No DIVCOM-K/10/2015 of October 12, 2015.
While infringement of right to liberty is not constitutionally permissible, the court said, at times it might be unavoidable to pass the order of detention in the larger interests of public, sometimes for maintaining the public order or some times for avoiding threat to security of the state, sometimes to avoid environmental degradation, loss to forest wealth and also to prevent drug trafficking.
The court said that preventive detention, in effect, was a direct invasion against cherished fundamental right to liberty guaranteed under Article 21 of the Constitution of India.
"Such custody at times is imperative when a person commits such acts which have direct or indirect impact on the society as a whole, the competent authority is constrained to have a resort to preventive measures so as to avoid any disastrous invasion to the rights of other members of the society or security of the state," the court said. |
