Person Involved In Solitary Criminal Activity Cannot Be Put Under Preventive Detention If Ordinary Law Of The Land Is Competent To Deal With It: Jammu & Kashmir And Ladakh High Court

The Jammu & Kashmir and Ladakh High Court has held that a person involved in a solitary criminal activity cannot be put under preventive detention, if ordinary law of the land is competent and sufficient to deal with such activity.

The Court was considering a Petition challenging an order passed under Section 3 of the Prevention of Illicit Traffic and Narcotic Drugs and Psychotropic Substances Act, 1988 by which the Petitioner was directed to be detained and lodged in jail.

The single bench of Justice Rajesh Sekhari observed, "a person involved in a solitary criminal activity cannot be put under preventive detention, if ordinary law of the land is competent and sufficient to deal with such activity. The detaining authority is under a legal obligation and constitutional mandate to provide in clear terms, complete particulars of all the criminal activities attributed to the detenue and if, relevant provisions of the penal code are sufficient to deal with the activity attributed to a criminal, recourse to PSA or preventive detention laws shall not only be illegal but unconstitutional.."

The Petitioner was represented by Advocate Ateeb Kanth while the Respondent was represented by Advocate Zahid Q Noor.

Facts of the Case

Assailing the impugned order, Counsel for the Petitioner confined his argument primarily on the ground that allegations attributed to him is on the grounds of detention may be a law and order problem but do not qualify within the definition of Public Order under Section 8 of the J&K Public Safety Act 1978 and that the grounds of detention are vague in nature, because there is no specific allegation regarding involvement of the petitioner in the unlawful activities attributed to him.

On the other hand, the Respondents, in the counter affidavit, contended that the detenue is a notorious illicit drug peddler and a principal dealer of Narcotic Drugs and Psychotropic Substances in his area. It was submitted that he was exposing the youth and gullible minds, including the school going children into the world of drugs in furtherance of criminal intention to make them habitual addicts. It was also the contention of the Respondents that the detenue was an active member of a larger drug mafia operating not only in the local area of his residence but also in the surrounding areas of his district. According, to the Respondents, the activities of the detenue posed a serious threat to the health and welfare of the people.

Reasoning By Court

The Court at the outset noted that the question before it is whether allegation contained in the grounds of detention against the detenue, would constitute an act amounting to disturbance of public order.

It pointed out that committing of a crime while makes up for a law and order problem, it doesn't amount to disturbance of public order.

"It is settled law that if ordinary law of the land is competent to deal with criminal activities of a criminal, recourse to the provisions of preventive detention laws are illegal. It is so because the expressions “Public Order” and “Law and Order”, operate in different fields and have different connotations. If an Act has the potentiality to disturb public order, it is the public at large which is affected by the said criminal activity. On the other hand, a particular criminal activity of a person shall be prejudicial to a particular individual or members of the society at large. Breach of law, by indulging in a criminal activity or in contravention of the provisions of a particular statute, can be termed as a law and order problem, but certainly it does not amount to disturbance of public order," the Court observed.

Citing Supreme Court's decision in Banka Sneha Sheels vs. State of Telangana & Ors, the Court stressed that the accused is well within his right to seek bail and the prosecution also have the authority to oppose the same.

It thus reiterated that a person cannot be put under preventive detention on the premise that he managed to secure bail from a competent court.

"The aforesaid allegations against the detenue are indeed serious. However, the fact remains that there is only one FIR against him. Had detenue being a chronic miscreant, as claimed by the detaining authority in the grounds of detention, he would have been booked under multiple cases and still could be dealt with in accordance with the ordinary law of the land. The vague allegations that he is a notorious drug peddler or principal dealer of narcotic drugs and psychotropic substances or that he is an active member of a larger drug mafia who expose and influence the youth of his area or that he is a member of an intricate drug syndicate, do not satisfy the requirements envisaged under section 8 of PSA, because such unfounded allegations of the detaining authority have no connection with the maintenance of public order. The sole criminal activity attributed to the detenue does not appear to have been disturbed normal life of people of District Anantnag. Therefore, in view of vagueness of allegations made in the grounds of detention, the detenue was prevented to make an effective representation against the impugned order of detention," the Court observed.

The Petition was accordingly allowed.

Cause Title: Adil Hussain Mir vs. UT of JK and Others

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