Repeated Preventive Arrests U/S 107 CrPC After Bail In UAPA Cases Are Fresh Grounds For PSA Detention: J&K&L High Court
The Jammu and Kashmir and Ladakh High Court has held that repeated preventive arrests of a detenu under Section 107 read with 151 CrPC after his release on bail in Unlawful Activities (Prevention) Act cases constitutes fresh and proximate material for the detaining authority to pass an order of preventive detention under the Public Safety Act, and such grounds cannot be dismissed as stale merely because the original UAPA cases are old.
The Court was hearing a habeas corpus petition filed by a detenu challenging the detention passed by the District Magistrate, Pulwama, whereby the petitioner was ordered to be detained under preventive custody in terms of Section 8 of the J&K Public Safety Act, 1978 with a view to prevent him from acting in any manner prejudicial to the security of the State.
A Single Bench of Justice M. A. Chowdhary, while dismissing the petition and upholding the detention order, observed,
“... Petitioner besides being involved in two cases registered at Police Station, Awantipora and Tral in subversive activities from the year 2020 to 2024, was alleged to have continued to work for terrorist organizations, which is prejudicial to the maintenance of security of J&K. The contention of stale grounds is, thus, not tenable and is liable to be rejected.”
The detenu was arrested in FIR under Sections 18, 19, 20 of the Unlawful Activities (Prevention) Act and in another FIR No. 04/2021 under Sections 506 IPC and 13, 18, 20, 38, 39 UA(P) Act. After being released on bail by the competent court, the detaining authority claimed that he continued his terror activities and did not mend his behaviour.
Significantly, the detenu was apprehended on five separate occasions under Section 107 read with 151 Cr.PC for his involvement in disturbing the peace and tranquility of the area. However, after his release from these preventive police actions, he did not abstain from subversive activities, according to the detention order.
The grounds of detention alleged that after passing the 10th class examination, the detenu associated himself with banned terrorist organizations Hizbul Mujahedeen (HM) and Jaish-e-Mohammad (JeM) and worked as an Over Ground Worker. The detaining authority, after considering these activities highly prejudicial to the security of the State, passed the detention order.
Court's Observations
The Court first examined the detention record and found that the detenu was informed of his right to make a representation. The execution report recorded that the detention warrant and grounds of detention were read over and explained to the detenu in Urdu/Kashmiri language which he fully understood, and his signatures were obtained.
The Court then referred to the Constitution Bench judgment in The State of Bombay v. Atma Ram, (1951) , holding that the satisfaction of the detaining authority is subjective and cannot be substituted by an objective test in a court of law. The Court observed that the scope of looking into the manner in which subjective satisfaction is arrived at is limited, and courts do not go into the correctness or falsity of facts mentioned in the grounds of detention, as that lies within the competence of the Advisory Board.
On the contention of stale grounds, the Court noted that the petitioner was involved in subversive activities continuously from 2020 to 2024, and was alleged to have continued to work for terrorist organizations. The Court held that the repeated preventive arrests under Section 107 CrPC after his release on bail in the UAPA cases demonstrated a continuing pattern of conduct prejudicial to the security of the State, and therefore the grounds could not be said to be stale.
The Court reiterated that preventive detention is devised to afford protection to society, citing Ashok Kumar v. Delhi Administration & Ors., AIR 1982 SC 1143, and that the object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing so. The Court also referred to Naresh Kumar Goyal v. Union of India & Ors., (2005) 8 SCC 276 and Union of India and another v. Dimple Happy Dhakad, observing that an order of detention is a preventive action, not curative, reformative or punitive.
The High Court thus found no illegality or impropriety in the impugned detention order. The petition was dismissed as devoid of any merit, and the detention order was upheld.
Case Title: Jahangir Ahmad Parray v. Union Territory of J&K & Ors.
Citation: 2026 LiveLaw (JKL)