Likelihood Of Getting Bail No Ground To Invoke Public Safety Act, Authority Must Challenge Bail Order Before Higher Forum: J&K High Court

If authorities fear a released individual might resume criminal activities, they should oppose their bail application or challenge a potential bail grant in higher courts. Preventive detention, the court emphasized, should not be a knee-jerk reaction based solely on the possibility of bail.

The observations were made by Justice Vinod Chatterji Koul while hearing a plea whereby the petitioner had challenged a detention order, issued under the Jammu and Kashmir PSA 1978.

The primary contention revolved around the vagueness and lack of specificity on the grounds of detention. It was argued that the detaining authority failed to attribute any specific allegations against the detenu, thus rendering the order cryptic and indefinite.

Furthermore, the petitioner highlighted the failure of the detaining authority to provide relevant material, including the dossier and copies of FIRs, relied upon to justify the detention. This omission, according to the petitioner, hindered the detenu's ability to make an effective representation against the detention order, as guaranteed by Article 22(5) of the Constitution of India and Section 13 of the Act.

Upon careful consideration of the arguments presented by both parties, Justice Koul delved into the procedural lapses surrounding the detention. The court emphasized the importance of procedural safeguards in preventive detention cases.

The court underscored that procedural requirements must be followed diligently, as they serve as the primary safeguards available to the detenu. Justice Koul further emphasized that preventive detention orders should not be passed merely on the apprehension that the accused, if released on bail, may resume criminal activities.

“If detaining authority is apprehensive that in case detenu is released on bail he may again carry on his criminal activities, then in such situation, the authority should oppose the bail application and, in the event, bail is granted, the authority should challenge such a bail order in the higher forum and that merely on the ground that an accused in detention is likely to get bail, an order of preventive detention should not ordinarily be passed”, the bench recorded.

Notably, the court scrutinized the proximity between the alleged prejudicial activities and the issuance of the detention order. Finding a lack of a cogent explanation for the undue delay and a failure to establish a live link between the activities and the purpose of detention, the court deemed the detention order unsustainable.

In light of these observations, the court quashed the detention order and directed the authorities to release the petitioner forthwith, provided he is not required in any other case.

Case Title: Muyeeb Shafi Ganie Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 19

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