Preventive Detention Cannot Be Used As A Short-Cut Method When Cancellation Of Bail Is An Available Remedy: J&K High Court

The Jammu and Kashmir High Court held that the prosecution's failure to seek cancellation of bail and instead using preventive detention as a shortcut to put the accused behind bars is not legally sustainable.

A bench of Justice Javed Iqbal Wani observed that if the accused, after being released on bail, was involved in acts prejudicial to the state, the prosecution was well within its rights to seek the cancellation of bail. However, the court noted that a shortcut method was adopted to send the accused behind bars.

The court also observed that the detention order did not specify the nature, dates, or details of the alleged post-bail activities, making it impossible for the detenu to challenge his detention due to the lack of concrete material being furnished to him.

The court further noted that although the respondents claimed that proceedings under Section 107 Cr. P.C. had been initiated against the petitioner, the detention record did not reveal that such proceedings were initiated before passing the impugned detention order.

The court stated that the record suggests the respondents adopted a shortcut method for detaining the petitioner rather than taking recourse to ordinary law in connection with the offences alleged to have been committed by him. The court held that on this ground alone, the detention order is not legally tenable.

BACKGROUND:

The petitioner was detained under the Jammu & Kashmir Public Safety Act, 1978. He was accused of working as an Over Ground Worker (OGW) for a terrorist organization. An FIR was registered against him under Sections 7/25 of the Arms Act and Sections 17, 18, 19, 23, 38, and 39 of the UAPA. Subsequently, he was discharged from various offences covered in the FIR and was granted bail with strict conditions.

The respondent, during the course of bai,l was detained by virtue of the preventive detention order on the ground that, despite being on bail, he was involved in prejudicial activities

The court held that if such was the case, the prosecution was free to move the cancellation of the bail, which was not done and rather a shortcut was adopted by placing him under preventive detention, which is unsustainable in law.

The court also said that the set of allegations under the detaining order was vague and cryptic, which prevented the petitioner from effectively challenging the said order. The court, accordingly, quashed the detention order.

APPEARANCE:

Mohammad Ibranim Wani, Advocate FOR Petitioners

Bikramdeep Singh, Dy. AG with

Nowbahar Khan, Assisting counsel FOR Respondents.

Case-Title: Manzoor Ahmad Wani vs Union Territory of J&K

Citation: 2025 LiveLaw(JKL) 72

Click Here To Read/Download Order