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Preventive detention orders can be passed even when a person is in police custody but for doing so, compelling reasons are to be recorded: High Court of J&K and Ladakh

It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded as held by the Hon’ble High Court of J&K and Ladakh through a learned bench of Hon’ble Mr. Justice Sanjay Dhar in the case of Gulzar Ahmad Bhat Vs UT of J&K & Ors [WP(Crl.) No.50/2020]. The petitioner was represented by Mr. Wajid Hasib, learned counsel, and learned counsel for respondent was Mr. Mir Suhail, AAG.

By the medium of this petition, veracity and validity of the order of detention bearing No. DMB/PSA/05 of 2020 dated 14.02.2020, issued by District Magistrate, Budgam (for brevity “Detaining Authority”), was assailed. In terms of the impugned order, Shri Gulzar Ahmad Bhat son of Sonaullah Bhat resident of Warpora Budgam, was placed under preventive detention and lodged in Kotbhalwal Jail, Jammu.

Petitioner had contended that the Detaining Authority had passed the impugned detention order mechanically without application of mind. It was further contended that the Constitutional and Statutory procedural safeguards were complied with in the instant case. It was also urged that the allegations made against the detenue in the grounds of detention were vague and that the translated version of the documents/grounds of detention was not provided to the detenue who is a semi-literate person. Petitioner had gone on to contend that he had not been informed as to before which authority he had to make a representation.

The respondents, in their counter affidavit, had disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It was contended that the detenue was detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind on the part of the Detaining Authority while passing the impugned order and that the detenue was provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.

The Hon’ble Court after hearing both the parties observed that the main grounds that have been argued during the course of hearing, by the petitioner, is that the detenue was already in custody in connection with case FIR No.61/2019 for offence under Section 10, 11, 13 ULAP Act registered with Police Station, Budgam, and there were no compelling reasons for the Detaining Authority to make the impugned detention order and that the Detaining Authority has not spelt out the compelling reasons for detaining the detenue under preventive detention laws.

While Observing the aforementioned, the Hon’ble High Court concluded and stated that, while relying on the Judgment of Supreme Court in the case of Surya Prakash Sharma v. State of U. P. and others, 1994 SCC (Cri) 1691, “It is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law.”

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Judgment Reviewed by – Aryan Bajaj

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