Detaining Authority Not Precluded From Issuing Preventive Detention Order Merely Because Individual Is Already Undergoing Trial: J&K High Court

Dismissing the habeas corpus petition filed by Rafaqat Ali challenging his preventive detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) Justice Sanjay Dhar observed,

“.. merely because a person is undergoing trial in substantive offences, the detaining authority cannot be debarred from passing an order of preventive detention against him, if it is satisfied that such person is indulging in illicit traffic of drugs”.

Ali, facing trial in four separate cases related to heroin possession, challenged a preventive detention order issued under PITNDPS Act arguing that the order was unnecessary as he was already facing trial.

He further contended that the grounds for detention relied solely on past accusations and lacked new evidence of ongoing drug trafficking. Additionally, the petitioner claimed he wasn't provided complete detention records or their translations.

The respondents, however, countered that Ali's continued involvement in drug trafficking despite ongoing cases posed a serious threat. They argued that preventive detention was a necessary measure to safeguard public well-being.

Upon analyzing the record of the case, Justice Dhar referred to Supreme Court precedents in Haradhan Saha Vs. State of W.B. (1975) and Naresh Kumar Goyal Vs. Union of India (2005) and established that preventive detention aims to prevent future crimes, not punish past ones.

Quoting Supreme Court from the above judgments the bench reiterated,

“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. An order of preventive detention is also not a bar to prosecution”.

The Court acknowledged the four cases against Ali and noted the presence of heroin, a contraband substance, in all instances. This, it concluded, provided sufficient grounds for the detaining authority to believe Ali continued to engage in drug trafficking.

Regarding the completeness of detention records, the Court verified that Ali received copies of the detention order, grounds for detention, relevant documents, and a translated explanation.

“The detention record also contains an affidavit/undertaking executed by the Executing Officer PSI Manveer Singh, according to which, the petitioner has been briefed about the grounds of detention in the language which he understands. Therefore, the contention of the petitioner in this regard is also without any substance”, the bench pointed.

Based on these observations the bench dismissed the petition.

Case Title: Rafaqat Ali Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 122

Mr. M. A. Bhat, Advocate appeared for the petitioner, Ms Chetna Manhas, Advocate vice Mr. Amit Gupta, AAG represented the UT

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