Preventive Detention Order May Be Passed Before Or During Prosecution: J&K & L HC

The Jammu & Kashmir and Ladakh High Court has observed that power of preventive detention does not overlap with the prosecution even if it relies on certain facts for which prosecution may be, or may have been, launched.

The Court was considering a Petition seeking quashment of Divisional Commissioner, Kashmir in terms of Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 placing detenu under preventive detention to prevent him from committing any of the acts within the meaning of Illicit Traffic.

The single-bench of Justice Vinod Chatterji Koul observed, "The power of preventive detention is exercised in reasonable anticipation. It may or may not relate to an offence. It does not overlap with the prosecution even if it relies on certain facts for which prosecution may be, or may have been, launched. An order of preventive detention may be made before or during prosecution. It 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 Petitioner was represented by Advocate Asif Ali while the Respondent was represented by Government Advocate Jehangir A. Dar.

Facts of the Case

Respondents in the affidavit filed insisted that detenu is involved in illegal trade of illicit traffic in narcotic drugs and psychotropic substances.

Counsel for Petitioner contended that the material relied upon by detaining authority while passing impugned order of detention, has not been provided to detenu, violating the Constitutional and Statutory procedural safeguards as provided to detenu under Article 22(5) of the Constitution of India. It was also the contention that detaining authority has not attributed any specific allegation against detenu and that vague allegations have been levelled against detenu. It was also stated by him that detaining authority has not assigned any compelling and cogent reason for passing order of detention and that detaining authority has not specified the authority before whom the representation has to be made nor has detaining authority informed detenu to make representation to him before the order could be approved/confirmed by the Government.

Reasoning By Court

The Court at the outset noted that the material relied upon by detaining authority has been given to detenu and grounds of detention have been read over and explained to detenu in Urdu/Kashmiri language.

It further noted that perusal of grounds of detention reveals the compelling and cogent reasons have been given by detaining authority to pass order of detention and selling/dealing in drugs among youth of the area which has adverse impact on the younger generation and that it is evident from grounds of detention that detenu is habitual in indulging in activities, which poses serious threat to the health, wealth and welfare of the people, especially young generation.

The Court observed that the power of preventive detention is exercised in reasonable anticipation and it may or may not relate to an offence and that the same doesn't overlap with the prosecution.

It referred to Supreme Court's decision in Prakash Chandra Mohan v. Commissioner, 1986 wherein it was observed that it must be remembered that observance of written law about the procedural safeguards for protection of individual is normally the high duty of public official but in all circumstances not the highest and that the law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority.

Cause Title: Shahid Ahmad Bhat vs. Union Territory of J&K and others

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