Pendency Of Prosecution No Bar To An Order Of Preventive Detention :J&K&L High Court

The Jammu and Kashmir and Ladakh High Court recently ruled that the pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order.

The observation was made by a bench of Justice Moksha Khajuria Kazmi  while hearing a plea in terms of which the petitioner assailed his order of detention issued by by Divisional Commissioner, Kashmir whereby he was placed under detention in terms of Section (3) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short NDPS Act ), and lodged in Central Jail Kote Bhalwal, Jammu.

The petitioner in his plea submitted that he had been falsely implicated in cases alleging offences under the NDPS Act. The petitioner further stated that In both the FIR's he had already been bailed out by the competent court, however,after a gap of about two years and six months, he had again been detained in terms of the impugned detention order on the basis of the material/dossier supplied by SSP Kupwara to the Detaining Authority.

The petitioner also argued that there is no material, evidence or document against the detenu as to how and on what material the Detaining Authority had attained satisfaction to pass the detention order.

Perusal of the record revealed that the police had recovered Charas like substance during Naka checking and the detenue was caught with a polythene bag containing 400 gm of Charas for which FIR No's 49 and 56 of the year 2012 and 2019 respectively, under Section 8/20 NDPS Act was registered against the detenue. The record further revealed that despite arrest of the detenu in the aforesaid criminal cases, he had continued to do the same acts and the confidential and credible sources have repeatedly confirmed that the detenue has made drug a sole profession.

Adjudicating upon the matter the bench observed even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person and the power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence and It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched, the bench underscored.

The bench further recorded,

"An order of preventive detention may be, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution. Discharge or acquittal of a person will not preclude detaining authority from issuing a detention order"

Buttressing the said position of law the bench found it worthwhile to record the observations of supreme court in Hardhan Saha v. State of W.B., (1975) wherein SC observed,

"There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent."

The bench further noted that it is not a number of acts that are to be determined for detention of an individual but it is the impact of the act(s) which is material and determinative. In the instant case the acts of detenue relates to drug trafficking, which has posed serious threat, apart from health and welfare of the people, to youth, most particularly unemployed youth, to indulge in such nefarious acts, and accordingly petition merits dismissal, the court concluded.

Case Title : Manzoor Ahmad Lone Vs UT of J&K & Ors

Citation : 2022 LiveLaw (JKL) 138

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