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Preventive Detention Orders can be Passed Even When a Person is in Police/Judicial Custody or Involved in Criminal Case: High Court Of Jammu And Kashmir At Srinagar

The need of compelling reasons for passing of order of preventive detention against a person already in police or judicial custody or in relation to a criminal case, was considered by the HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR, before a bench consisting of Hon’ble Justice Mr. Sanjay Dhar, in the matter of Mohammad Aslam Sheikh vs. Union Territory of J&K and Anr. [WP(Crl.) No.192/2020], on 27.01.22.

By the medium of the present petition, veracity and validity of the order of detention dated 11.11.2020, issued by District Magistrate, Budgam (“Detaining Authority”), has been assailed. In terms of the impugned order, Shri Mohammad Aslam, resident of Gudpora Yarikah Khansahib, Budgam, has been placed under preventive detention and lodged in District Jail, Amphala J&K, Jammu.

Petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the translated version of the documents/grounds of detention has not been provided to the detenue who is a semi-literate person. Petitioner has gone to contend that he has not been informed as to before which authority he had to make a representation. Learned counsel for the petitioner highlighted various grounds while seeking quashment of impugned order but the main ground that has been argued during the course of arguments is that the detenue was already in custody in a case for offences under Sections 18, 20, 23, 38, 39 of ULA(P) Act and Sections 7, 25 Arms Act of Police Station, Khansahib, 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 laws.

The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been 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 has been 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 Court, after taking into account the facts, arguments put forth, and placing reliance on several precedents, held that it is a settled position of law that preventive detention orders can be passed even when a person is in police/judicial custody or involved in 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. In the absence of these reasons, the order of detention becomes unsustainable in law. It was noted that Coming to the facts of instant case, in the grounds of detention, after referring to the allegations made in the FIR, it has been mentioned that these activities of the detenue are prejudicial to the security of State that have a potential of destabilizing the country in case the detenue is allowed to remain at large. However, the Detaining Authority has not referred to any other cogent material or furnished any other cogent ground to show that if the detenue is allowed to remain at large, he will be a potential threat to the security of the State. It appears that the satisfaction of the Detaining Authority that the detenue is a potential threat to the security of the State is solely based on the allegations made in the aforesaid FIR and no other material. The detenue was already in custody in the aforesaid FIR and there were remote chances of his getting bail as he was involved in the offences to which rigor of S.43D of UAPA is attracted. Thus, there were no compelling reasons for the detaining authority to pass the impugned order of detention. The same, therefore, was held to be not sustainable in law. The impugned detention order was quashed and the petition was allowed, and the Court directed the release of the detenue provided he was not required in connection with any other case.

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Judgement reviewed by Bhargavi

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