Preventive Detention Orders Can Be Passed Even When A Person Is In Police Custody But There Must Be Compelling Reasons: J&K&L High Court Reiterates

The Detention Order had been issued by Divisional Commissioner, Kashmir with a view to prevent the petitioner from committing any of the acts within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

A bench of Justice M. A Chowdhary while quashing the detention order held 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, there must be compelling reasons for the detaining authority to do so. The detaining authority is bound to record the compelling reasons as to why the detenu 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.

In his plea before the court, the petitioner had submitted that the he had already been detained in the matter under two FIRs lodged in 2019 for offences under NDPS act and was already facing trial. Subsequently he had moved before a competent court which had enlarged him on bail. The detention order against him was issued in September 2021 and the detaining authority despite having knowledge about the detenu having already been admitted to bail had not mentioned this important fact in the grounds of detention which shows non-application of mind on the part of detaining authority, submitted the petitioner.

Alleging non application of mind on behalf of the detaining authority the petitioner had further pleaded that the detaining authority had not prepared the grounds of detention by itself which is pre-requisite but had relied upon the police dossier and had not perused any supporting material relating to the case. Petitioner also contended that the detaining authority had worked on the dictates of police authorities and had not enquired about the existence of the facts by perusing the supporting material, as such grounds of detention seemed to be replica of the police dossier.

Upholding the contention of the petitioner the court held that the fact that the petitioner was already taken into custody in two FIR's for offences under NDPS Act and subsequently admitted on bail has been completely left out indicates either the detaining authority has not applied its mind or the full material relatable to the detenu had not been placed before it. So the non-application of mind is explicit which renders the order of detention illegal, court held.

Placing reliance on a Supreme Court Judgement in Surya Prakash Sharma v. State of U. P. and others, 1994 the court recorded

"Preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, there must be compelling reasons for the detaining authority to do so."

The bench in its order further elaborated that 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.

Court also reiterated the observations of the Apex court in T. P. Moideen Koya vs. Government of Kerala and ors."

"……in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenue was likely to be released on bail".

Demonstrating disapproval against the detention order the court noted that the impugned detention order has been passed by the detaining authority by showing the detenu as an active member of some drug mafia involved in the illicit traffic of narcotics. There is, however, no such record/proof in support of such claim, except the alleged involvement in the aforesaid cases. Such an eventuality can be taken care of by the substantive laws on the subject instead of resorting to preventative law, the court observed.

Allowing the petition the court quashed the order of detention issued by the Divisional Commissioner, Kashmir and directed the detenu to be released from the preventive custody provided he is not required in connection with any other case(s).

Case Title : Riyaz Ahmad Mir V Union Territory of J&K & Ors.

Citation : 2022 LiveLaw (JK) 41

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