Person Arrested Under UAPA Has Bleak Chances Of Bail, Detaining Authority Must Show Compelling Reasons For His Preventive Detention: J&K&L High Court

The observation especially assumes relevance in the context where a person proposed to be detained is accused under Unlawful Activities (Prevention) Act and has bleak chances of bail and therefore, is deterred from indulging in subversive activities.

The observation came from Justice Sanjay Dhar:

"The petitioner has been booked in an offence falling under Chapter IV of the ULAP Act and in view of the provisions of Section 43-D of the said Act, the chances of the petitioner getting bail were very remote. Thus, there were no compelling circumstances for the detaining authority to pass the impugned order of detention. The Detaining Authority was 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, as already discussed, there is no such material on record."

The petitioner had challenged the impugned order of detention on the ground that at the time when the impugned order of detention was passed, he was already in custody in connection with FIR for offences under Section 18, 20 and 38 of ULA(P) Act and, as such, there were no compelling reasons for the detaining authority to pass the detention order.

It was further contended that the material forming basis of the grounds of detention in the form of copy of FIR, copy of dossier, copies of statements of witnesses recorded under Section 161 CrPC was not supplied to the detenue, thereby curtailing his right to make an effective representation against impugned order of detention.

In their counter affidavit, the respondents submitted that all the safeguards have been adhered to and complied with by the detaining authority and that the order has been issued validly and legally.

The Court observed that there is no material on record to even remotely show that it was absolutely necessary for the Detaining Authority to detain the petitioner under the provisions of the Jammu and Kashmir Public Safety Act.

"In the grounds of detention, after referring to the contents of the aforesaid FIR, it has been mentioned that these activities of the detenue are prejudicial to the security of the State and being highly motivated to carry on the illegal designs he is not likely to desist from indulging in antinational and anti-social activities. However, the Detaining Authority has not brought on record any other cogent material or furnished any other cogent ground to show that the detenue is not likely to desist from the aforesaid activities. It appears that the satisfaction of the Detention is solely based on the allegations made in the aforesaid FIR and no other material."

At the end, the court said that the detenue has been shown to be involved in a substantive offence under UAPA and in view of the provisions of Section 43-D of the said Act, the chances of the petitioner getting bail were very remote.

Thus, there were no compelling circumstances for the detaining authority to pass the impugned order of detention.

"It is trite 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, 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 and in the absence of these reasons, the order of detention becomes unsustainable in law." Court said

Case Title : SAKIB AHMAD SHEROO v UT OF J&K & ANOTHER 

Citation: 2022 LiveLaw (JKL) 114 

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