Where individual liberty comes into conflict with the security of the state, it must give way to the larger interest of the nation, the High Court of Jammu & Kashmir and Ladakh has held as it dismissed a petition challenging the detention of a 27-year-old youth from Doda under the Public Safety Act.
A single-judge bench of Justice M A Chowdhary was hearing a habeas corpus petition by the detenu, Rehmatullah of Doda district’s Desa Bhata, filed through his brother Mohammad Irfan.
In his petition, the detenu challenged the November 9, 2024, detention order by the Doda district magistrate on the ground that it was primarily based on five FIRs – most of which he allegedly discharged. On the remaining FIR, he claims they are “vague”, a material fact allegedly “concealed” from the detaining authority.
It then goes on to allege that a representation filed on behalf of the petitioner on November 22, 2024, was neither considered expeditiously nor was its outcome conveyed to the detenu, and that, as a result, he could not make an “effective and meaningful representation’’ to the government.
The government advocate, Eishaan Dadhichi, however, refuted the petitioner’s arguments, saying that his representation was duly considered and found to be “without merit”. He also argued that the detaining authority had seen the past FIRs against the detenu only in the background but relied primarily on four new ones between 2021 and 2024.
Dismissing the petition, Justice M A Chowdhary observed that the grounds of detention clearly show that the detenu was an OGW (overground worker) and a “militant sympathiser” who was detained under Public Safety Act in 2016.
The new FIRs too showed his “continuous involvement in criminal and anti-national activities without any respect of substantive law, thus posing serious threat to the security scenario of the UT of J&K, particularly, District Doda”, Justice Chowdhary observed.
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“Keeping in view the activities of the detenu, the Detaining Authority after due application of mind, by arriving at subjective satisfaction has issued the order of detention, which cannot be found fault with,” the court said.
“The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. The order of preventive detention may be made before or during prosecution and the pendency of the prosecution is not a bar to an order of preventive detention and is also not a bar to prosecution,” he observed.
In this case, the detaining authority – the district magistrate – had applied its mind by going through all the material, the past conduct of the detenu and “arrived at subjective satisfaction that the activities of the detenu were prejudicial to the interest of the State and issued the order of detention”, the court.
“Liberty of an individual has to be curtailed, within reasonable bounds, for the good of the society at large,” he said. “In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. 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.”
