HC uphold PSA of Criminal
JKUT (Jammu), December-11-2021-( JNF):- Justice Tashi Rabstan of Jammu & Kashmir and Ladakh High Court uphold the Public Safety Act of Babar Khan, a criminal.
While dismissing the petition, Justice Tashi Rabstan after hearing Adv Jagpaul Singh for the detenue whereas AAG Aseem Sawhney appearing for the respondents observed that although right of personal liberty is most precious right, guaranteed under the Constitution, which has been held to be transcendental, inalienable and available to a person independent of the Constitution, yet the personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India, is to be just and fair. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object is to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent the person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) of the Constitution of India, therefore, leaves scope for enactment of preventive detention law.
Court further observed that the essential concept of preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Haradhan Saha vs State of W.B. (1975) 3 SCC 198, points out that a criminal conviction, on the other hand, is for an act already done, which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case, a person is punished to prove his guilt and the standard is proof, beyond reasonable doubt, whereas in preventive detention a man is prevented from doing something, which it is necessary for reasons mentioned in the Act, to prevent and it is long back that an eminent thinker and author, Sophocles, had to say: “Law can never be enforced unless fear supports them.” This statement was made centuries back, but it has its relevance, in a way, with enormous vigour, in today’s society. Every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. It has to be kept in mind that law is antagonistic to any type of disarray. It is completely intolerant of anarchy. If anyone flouts law, he has to face the ire of law, contingent on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent and gravity depending on the nature and impact of such deleterious activities on the society. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. Acts or activities of individual or a group of individuals, prejudicial to the security of the State, have magnitude of across-the-board disfigurement of societies. No court should tune out such activities, being won over by passion of mercy. It is the obligation of the court to constantly remind itself the right of society is never maltreated or marginalised by the doings an individual or set of individuals propagate and carry out.
Court further observed that in the present case, the petitioner-detenu seems to be a hard core criminal and has become a terror figure among the people of the area as against him nine FIRs came to be registered in different police stations under various sections of the IPC between the period 2015 to the year 2021. Since the actions taken against the petitioner-detenu under the ordinary law from time to time have not been proved to be deterrent, as such the respondents had no other option but to keep him in preventive detention and 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. 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. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another.
In the present case the petitioner has been involved in many criminal activities and against him nine FIRs have been lodged under various sections of the IPC in different police stations. These are FIR No.210/2025 under Sections 307/341/34 RPC registered at Police Station Gandhi Nagar, Jammu regarding causing injury to an auto driver on his left leg by firing; FIR No.70/2015 under Sections 341/382/323 RPC RPC registered at Police Station Peer Mitha, Jammu regarding assaulting and causing serious injuries to the complainant therein and also decamping Rs.42000/- cash; FIR No.22/2016 under Section 341/427 RPC registered at Police Station Bus Stand, Jammu regarding breaking the mirrors of a bus; FIR No.53/2017 under Section 382/341/323 RPC registered at Police Station Peer Mitha, Jammu regarding snatching of Rs.25000/- and gold chain; FIR No.63/2017 under Sections 307/458/147/323 RPC registered at Police Station Nowabad, Jammu regarding causing serious injuries on the head and legs of the complainant therein with tokas with an intention to kill; FIR No.95/2017 under Section 364/323/34 RPC registered at Police Station Bus Stand, Jammu kidnapping and assaulting the complainant therein; FIR No.36/2018 under Section 3/25 Arms Act registered at Police Station Janipur, Jammu; FIR No.13/2020 under Sections 452/387/149/506 IPC registered at Police Station City, Jammu regarding extorting money and FIR No.91/2021 under Sections 307/34 IPC, 3/25 Arms Act registered at Police Station Gandhi Nagar, Jammu regarding making firing at the residential premises of one Nagar Singh. Therefore, it seems the petitioner is a hardcore criminal, has become a terror figure among the people of the area and the actions taken against him under the ordinary law from time to time have not been proved to be deterrent. As per the objections, earlier also in the year 2018 the petitioner-detenu was booked under the Public Safety Act.
Court further observed that it seems the petitioner-detenu instead of mending his ways has continuously been indulging in criminal activities and has not shown any respect for the law of the land, as such the petitioner-detenu has created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area, has become a chronic fear amongst the people of the area. Thus, the activities of the petitioner are of hardcore criminal and habitual of indulging in acts of violence. With these observations, High Court dismissed the petition and uphold the detention order. JNF