Careful Consideration Of Grounds On Which Bail Has Been Granted To Detenue Is Critical In Preventive Detention Cases: J&K High Court
The Jammu and Kashmir and Ladakh High Court has emphasised that when bail is granted not on the merits of the case but due to procedural defaults under Section 167 of the Criminal Procedure Code or for urgent temporary purposes, such grounds might not favor the detainee.A bench of Justice Wasim Sadiq Nargal ruled that in these cases, authorities may view such circumstances as...
The Jammu and Kashmir and Ladakh High Court has emphasised that when bail is granted not on the merits of the case but due to procedural defaults under Section 167 of the Criminal Procedure Code or for urgent temporary purposes, such grounds might not favor the detainee.
A bench of Justice Wasim Sadiq Nargal ruled that in these cases, authorities may view such circumstances as further justification for preventive detention, provided other criteria are met.
Underscoring the importance of carefully considering the grounds for bail in preventive detention decisions the court stated,
“The grant of bail plays a crucial role in the assessment of the detaining authority's required satisfaction. When considered carefully, the reasons for grant of bail can significantly affect the authority's decision… if bail is granted not on the merits of the case but due to a procedural default under Section 167 of the Code of Criminal Procedure, or for a temporary urgent purpose, these circumstances might not benefit the detenu”.
Justice Nargal made these observations while hearing a plea originating from the detention of one Mohammad Tajamul Masoodi, a businessman from Pulwama, detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act.
The detention order, issued by the Divisional Commissioner of Kashmir followed Masoodi's involvement in a 2017 case where he was implicated in cross-border drug trafficking. Despite securing bail Masoodi was detained preventively, prompting his wife to file a petition challenging the legality of the detention order on grounds of procedural errors and insufficient evidence linking him to ongoing criminal activities.
Counsel for the petitioner argued that the detention order was baseless and lacked post-bail incidents justifying preventive detention. They maintained that Masoodi's detention was unwarranted, asserting that all allegations against him were either vague or non-existent. Furthermore, the petitioner contended that procedural safeguards, such as providing adequate grounds for detention and pertinent documents, had been disregarded.
On the other hand, government counsel defended the detention order, arguing that Masoodi posed a continued threat due to his alleged involvement in a drug trafficking network. They asserted that preventive detention served as a necessary measure to avert potential harm to public safety.
Court's Observations:
In order to adjudicate the matter addressed several pivotal questions. Answering a question as to whether a solitary offence involving a significant quantity of contraband, accompanied by subsequent field reports, justified the preventive detention the court affirmed the same owing to the far-reaching impact on public health and societal stability.
Citing Debu Mahato v. State of West Bengal 1974, the court reiterated,
“...the order of detention is essentially a precautionary measure and it is based on the reasonable prognosis of the future behavior of a person based on his past conduct judged in the light of the surrounding circumstance. Such past conduct may consist of one single act or a series of acts.”
In the instant case, the court found the scale of the alleged offense, transporting over 66 kilograms of brown sugar sufficient to substantiate the risk he posed to public health and public safety, given the lasting and harmful effects of narcotics trafficking on communities.
Scrutinising the subjective satisfaction of the detaining authority having been adequately met in the case at hand the court found that the Detaining Authority had sufficiently established subjective satisfaction, bolstered by Masoodi's alleged connections to cross-border drug trafficking activities. The court highlighted that subjective satisfaction under preventive detention laws is not equivalent to the evidentiary requirements in criminal trials, and therefore, Masoodi's detention was deemed lawful and justified.
Commenting on the detaining authority's consideration of all necessary factors, including the grounds for bail the court emphasized that while Masoodi's bail was procedural rather than merit-based, the Detaining Authority had appropriately assessed these grounds.
Justice Nargal referenced Abdul Sathar Ibrahim Manik v. Union of India, underscoring that the grounds for bail play a critical role in determining preventive detention. Since bail in Masoodi's case was granted due to procedural defaults, the authority justifiably considered this as insufficient to preclude preventive detention, he pointed.
Evaluating if the procedural safeguards had been met by the Detaining Authority Justice Nargal observed that procedural requirements were adhered to, with all necessary documents provided to Masoodi, including the detention order and grounds and remarked,
“The record demonstrates that the detaining authority adhered to the legal procedures required for issuing a detention order, thus mitigating any claims of procedural irregularities”
In alignment with these findings the court upheld the preventive detention order and concluded that the detenu's actions after being released on bail have shown a continued participation in criminal activities. This sustained involvement in unlawful and anti national actions supports the rationale for the preventive detention order, the bench reasoned and dismissed his plea.
Case Title: Mohammad Tajamul Masoodi Vs UT Of J&K
Citation: 2024 LiveLaw (JKL) 299