The Bench of Justice Rahul Bharti of the High Court of J&K and Ladakh while disposing off a Habeous Corpus Petition filed under Article 226 of the Constitution of India made it clear that when it comes to a matter of involvement of fundamental right to personal liberty, the non-filing of response by the detaining authority cannot hold back the Court from deciding the Petition on its own merits.
In the case at hand, the Petitioner having been detained in preventive custody under the J&K Public Safety Act for a period of two years, petitioned the Court through his wife, challenging the order of Detention passed by the District Magistrate, Poonch.
Noting that the Petitioner has served one and a half year of his preventive custody and out of the total period only four months are left, and the UT has failed to file any response/reply to the Petition, the Court observed, “A habeas corpus writ petition . cannot be allowed to suffer self-abortion because of its pendency outlasting the prescribed period of detention as that would be simply telling an aggrieved petitioner as a detenue that it is not by operation the rule of law that he has regained his personal liberty but just by an efflux of time and that would always be a very sad statement on a case in so far as approach of a constitutional court towards adjudication of writ of habeas corpus is concerned”.
The Court, thus, went on to consider the matter in absence of the reply and on its own merits, and observed that the grounds of detention made reference to two FIRs, dating back to the year 2006 (FIR No.177/2006) and 2007 (FIR No. 62/2007), respectively, and to preventive proceedings under 107/110/151 of the Code of Criminal Procedure, 1973 on two occasions, and declared the reference to the FIRs of 2006 and 2007 as “stale references to have any nexus with the grounds of detention forming basis for subjecting the petitioner to preventive detention custody”. Therefore, drawing reference from the law declared by the Supreme Court in “Sama Aruna Vs State of Telangana and others,” reported in [(2018)12 SCC 150] the Court held, “The very fact that the respondent No. 2–District Magistrate, Poonch has referred to the petitioner’s involvement in two criminal cases of 2006 & 2007 ex-facie show that these two by all stretch of reference are too remote to be a live basis to consider a case of preventive detention of a person…”
It further declared that those two references self-rule out thereby leaving only two stray preventive proceedings under section 107/110/151 Code of Criminal Procedure, 1973 for the respondent No. 2-District Magistrate, Poonch to form subjecting satisfaction that the petitioner deserved to be deprived of his personal liberty otherwise a guaranteed fundamental right under article 21 of the Constitution of India.
Further, with respect to the preventive proceedings under section 107/110/151 CrPC, the Court noted that the District Magistrate had the least factual input as to whether by reference to said two preventive proceedings, the petitioner was ever first called upon to execute any bond, along with or without surety, or not and still he reckoned the two referred preventive proceedings good enough for subjecting the petitioner to preventive detention custody, and, thus, declared the same as “nothing but a trampling of fundamental right to personal liberty of a citizen just on mere whims and fancies of the District Police and at the District Magistrate’s end.”
Holding the preventive detention of the Petitioner as seriously flawed, the Court set-aside the order of detention and quashed all the subsequent orders approving and confirming the preventive detention of the Petition while declaring them as illegal, and directed the Petitioner to be released to his personal liberty by the Superintendent of the concerned jail.
