The High Court of Jammu & Kashmir and Ladakh dismissed the petition against preventive detention of a person who had 9 First Information Reports (FIRs) against him. The single-judge bench of Justice Tashi Rabstan held that the aim of preventive detention is to stop the illegal activities of an individual which otherwise cannot be stopped.
The petitioner, Babbar Khan was placed under preventive detention under the Public Safety Act (PSA). It was contended on behalf of the petitioner that it was not mentioned in the detention order that he was already in custody at the time of passing the order. Further, he had made a representation against his detention but the fate of the same was not communicated to him. Also, the allegation with regard to the association of petitioner, as alleged in the grounds of detention, as well as the status of FIRs, which have been made basis for issuing the detention order, have not been disclosed; neither was he supplied with the material documents relied upon when passing the detention order.
The respondents averred that the aim of preventive detention is to stop the illegal activities of an individual which otherwise cannot be stopped when such an individual creates havoc in the society which leads to public disorder, peace, stability and in certain cases also raises alarm bells regarding the nation’s unity and integrity. It was further contended that the petitioner was a threat to the public order, peace and stability in the society.
The court held that the aim of preventive detention 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, saying:
“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.”
The court also quoted Sophocles as “Law can never be enforced unless fear supports them.” The court then went on to state, “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.”
“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 marginalized by the doings an individual or set of individuals propagate and carry out,” the court added.
The court further held that nine FIRs lodged against the petitioner between 2015 and 2021, made the basis for preventive detention under PSA. The court observed that the petitioner seems to be a hard core criminal and has become a terror figure among the people of the area, given how nine FIRs came to be registered against him. The offences in the 9 FIRs included assault, theft, kidnapping, extortion and certain offences under the Arms Act. He was previously also booked under PSA in 2018.
The court cited The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127 to observe that, “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.” The court also cited many judgements to observe that one act can suffice to satisfy preventive detention.
The court thus dismissed the habeas corpus petition and held that the petitioner instead of mending his ways has continuously been indulging in criminal activities and has not shown any respect for the law of the land. The court also held that his activities are those of a hardcore criminal and habitually indulging in violence.
The complete judgement may be read here: