Libertatem Magazine

Jammu and Kashmir High Court Quashes Order of Preventive Detention 

Contents of this Page

Brief Overview 

The present case involved a Habeas Corpus petition filed by a person through his father to free himself from Preventive Detention 

Facts in Brief 

The Divisional Commissioner, Kashmir (Detaining Authority) had issued an Order that authorized Preventive Detention of the Petitioner to prevent him from committing an offence under the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act and to prevent disruption of public order. The Order of the Divisional Commissioner was based on a dossier submitted by the Senior Superintendent of Police, Srinagar. The grounds of detention that were served to the Petitioner included allegations that the Petitioner was involved in the illegal distribution of drugs and had an FIR 113/2018  under Section 20/22 of the NDPS Act registered against him. These grounds of detention served as subjective satisfaction to the Detaining Authority. The Petitioner challenged this order 

Contention of the Petitioner

The Petitioner contended that the grounds to arrive at the subjective satisfaction of the Detaining Authority were flawed by the want of reason. The Detaining Authority had clubbed two activities to indict the Petitioner. It was not clear whether the Petitioner had been detained to prevent trafficking of drugs or to maintain “public order”. The other contention of the Petitioner was that he was already in the custody of the State and hadn’t applied for bail then what was the need to pass an order of Preventive Detention? 

Contention of the Respondents  

The Respondents contended that the Preventive Detention Order did not suffer from any malice and aligned with the Constitutional Principles. On the subject of satisfaction of the Detaining Authority, the Respondents placed reliance on Hardhan Saha V State of West Bengal and contended that Preventive Detention may be made with or without prosecution and in anticipation and further that the pendency of prosecution was no bar to pass an order of Preventive Detention 

Decision of the Court 

The Preventive Detention order was quashed and it was ordered to release the Detenu from the custody of the State 

Reasons for Decision

The Court reasoned that the order of detention was not clear about the basis on which the Petitioner had been detained. FIR No 113/2018 and FIR No 2/2019 which found a mention in the ground of detention were concerning the NDPS Act and if the Petitioner had to be detained to prevent him from dealing in drugs, Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, which contained provisions for Preventive Detention was to be invoked. This cleared the air that the object was not to prevent the illicit trafficking of drugs. Further, the Court pointed out that the affidavit submitted by the Respondents mentioned that on 13.1.2019 the Petitioner was arrested for trafficking of drugs. This submission in the affidavit proved that the Detenu was already in custody at the time of passing the detention order and no compelling reasons had been provided by the detention authority to satisfy the Court of the necessity of such order when the Petitioner was already in custody. The Court placed reliance on Surya Prakash Sharma v. State of U.P. in which the conditions for passing of Preventive Detention orders despite the person being in detention were laid down, the conditions being that the Detaining Authority was aware of the fact that the Detenu was already in detention and secondly that compelling reasons were justifying such detention although the Detenu was already in detention. In the present case, the detention authority knew that the Petitioner was in custody, but no cogent material was placed on record to indicate “compelling reasons”.

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