The Jammu & Kashmir and Ladakh High Court has observed that merely on the ground that an accused in detention is likely to get bail, an order of preventive detention should not ordinarily be passed.

Further held that in an event that such an accused is granted bail, then the authority should rather oppose the bail in the higher forum.

Accordingly, a bench of Justice Vinod Chatterji Koul observed, “Certainly, in the present case, there is no cogent explanation coming to fore from perusal of the grounds of detention with reference to the live-link between the prejudicial activities and the purpose of the detention and resultantly, the impugned detention order is liable to be quashed…The law on the subject is settled. If detaining authority is apprehensive that in case detenu is released on bail he may again carry on his criminal activities, then in such situation, the authority should oppose the bail application and, in the event, bail is granted, the authority should challenge such a bail order in the higher forum and that merely on the ground that an accused in detention is likely to get bail, an order of preventive detention should not ordinarily be passed”.

The bench referred to Sama Aruna v. State of Telangana and another, AIR 2017 SC 2662 wherein it was held that only on the ground that an accused in detention, as an undertrial prisoner, was likely to get bail, an order of detention under the Nation Security Act should not ordinarily be passed.

In the present writ petition, a detention order passed by District Magistrate, Srinagar, whereby detenu was placed under preventive detention with a view to preventing him from acting in any manner prejudicial to the maintenance of security of the state.

It was argued on behalf of the petitioner that the grounds of detention were vague, indefinite, cryptic, inasmuch as detaining authority did not attribute any specific allegation against detenu.

Further that the detaining authority did not furnish the material including dossier, relied upon by it, to detenu to enable him to make an effective representation by giving his version of facts attributed to him.

After perusing the Execution Report and Receipt of Grounds of Detention, the Court noted that only five (05) leaves were given to the detenu.

Therefore, after considering the relevant documents the bench was of the opinion that the detention record did not indicate that copies of First Information Report, Statements recorded under Section 161 CrPC and other material collected in connection with investigation of aforesaid case were ever supplied to the detenu, on the basis whereof impugned detention order has been passed.

Appearance: For the Petitioner: Wajid Haseeb, Advocate

For the Respondent: Sajad Ashraf, GA

Cause Title: Muyeeb Shafi Ganie v. Union Territory of J&K and Anr.

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