‘Involved in anti-national activities since early age’: Why J&K&L High Court denied relief to man with LeT, HM ties in preventive detention

The judge continued, “Those who are responsible for national security or for maintenance of public order must be the sole judges of what the national security, public order or security of the State requires. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing.”

Case

One Shaheen Ahmad Wagay was ordered to be detained under preventive custody under Section 8 of J&K Public Safety Act, 1978 to prevent him from acting in any manner in the activities “prejudicial to the security of the State”

His father Ghulam Qadir Wagay moved the high court seeking quashing of the order calling the grounds of detention “false and flimsy” which were without any justification.

Arguments

Wagay, through his counsel Usman Gani, argued that  mere assertions of the detaining authority and no prudent man can make an effective and meaningful representation against these allegations. It was also argued that Wagay was not provided the material/documents relied upon by the detaining authority so as to make an effective representation before the detaining authority.

Further, the basic procedure laid down in Article 22 of the Constitution was in total violation and the detaining authority while passing the order relied upon the stale grounds, therefore, the same was not sustainable, it was argued.

In an affidavit contesting the petition, the district magistrate, represented by government advocate Zahid Qais Noor,  submitted that detaining a person under the provisions of Public Safety Act “is always preventive” in nature and its sole aim is to prevent a person from pursuing anti-national/anti-social activities, which are prejudicial to the security of the State etc.

“In the instant case there is enough material against the detenue which is highly suggestive of the fact that the normal law of the land is not sufficient to prevent him from continuing with his anti-national activities and, it is evident that the detenue is highly motivated and is not likely to desist from anti-national and unlawful activities,” it added.

Observations

The bench though outlining the right of personal liberty being “most precious right guaranteed under the Constitution of India”, said the 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”.

The court, therefore, highlighted that the object of detention was “not to punish a man for having done something” but to intercept before he does it and to prevent him from doing.

“The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. Justification for such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence,” it said.

The detention record indicated to the court that Wagay had been “nurturing secessionist ideology” and “motivating others to follow suit”.

The judge further noted that he was affiliated with banned militant outfits of LeT and Hizbul Mujahideen (HM) and played a very important role in providing logistic support to the members of these militant outfits.

“Detenue continued to work as Over Ground Worker (OGW) for banned outfit HM; that the detenue had never remained law abiding citizen which can be gathered from the fact that in 2020 he secretly sowed the seeds of hatred and disaffection against the J&K Police and other security forces in his area by pasting some posters on electric poles…,” it added.