Grant Of Bail In Criminal Cases Does Not Bar Preventive Detention If Authority Apprehends Future Threat: J&K&L High Court

The Court reiterated that preventive detention is based on the detaining authority's satisfaction that detention is necessary to prevent the person from engaging in activities prejudicial to public order.

The Court made these observations while disposing off a habeas corpus petition challenging a detention order issued under Section 8 of the Jammu and Kashmir Public Safety Act, 1978. The petitioner had assailed the order passed by the District Magistrate, Kathua directing his preventive detention.

Justice Rajesh Sekhri observed that the grant of bail in criminal proceedings does not preclude preventive detention where the authority apprehends that the person may continue similar activities. The Court noted,

“Preventive detention of a detenu cannot be held illegal merely because detenu has been bailed out in criminal cases against him and prosecution failed to move the concerned court for cancellation of his bail. If the object of detention is to prevent a habitual offender from re-offending in future, which may tend to create a law and order problem or disturb the public order and communal harmony, resort to preventive detention is perfectly justified.”

Background:

The petition challenged a preventive detention order issued by the District Magistrate, Kathua under Section 8 of the Jammu and Kashmir Public Safety Act, 1978, pursuant to which the petitioner was detained and lodged in Central Jail, Kot Bhalwal, Jammu.

The detention was based on a dossier submitted by the Senior Superintendent of Police, Kathua describing the petitioner as a habitual offender allegedly involved in smuggling of bovine animals. The dossier referred to four FIRs registered against him at different police stations. It was also recorded that local representatives had reported that the petitioner was repeatedly involved in bovine smuggling and theft cases.

The petitioner challenged the detention order contending that the grounds of detention were not explained to him in the language he understood, relevant documents including FIRs and bail orders were not supplied to him, and that the detention was based on FIRs in which he had already been granted bail.

The respondents opposed the petition and contended that the detention order had been passed after due consideration of the dossier and the petitioner's repeated involvement in criminal activities which were considered prejudicial to public order.

Court's Observation:

The Court first examined the contention that the petitioner had not been supplied the relevant documents or informed of the grounds of detention in a language he understood. Referring to the detention record and the counter affidavit of the respondents, the Court noted that 47 leaves of documents were supplied to the petitioner and that the grounds of detention were read over and explained to him in Hindi/Urdu. The Court observed that the petitioner had not filed any rejoinder to rebut this assertion and therefore the respondents' stand remained unrebutted.

On the argument that the petitioner had been detained despite being granted bail in the FIRs relied upon, the Court examined the nature of preventive detention. It noted that preventive detention is precautionary in character and is exercised on the basis of reasonable apprehension that the person may engage in prejudicial activities in the future.

The Court observed that the petitioner had allegedly been involved in repeated instances of bovine smuggling and that multiple FIRs relating to similar conduct had failed to deter him. The detaining authority had therefore formed the view that it was necessary to detain him in order to prevent similar activities.

Referring to the Constitution Bench judgment in Haradhan Saha v. State of West Bengal, the Court noted that preventive detention is qualitatively different from punitive detention and may be ordered before, during or even after criminal prosecution. The Supreme Court had held that the pendency of criminal proceedings or even discharge or acquittal does not bar an order of preventive detention.

The Court also referred to State of Bombay v. Atma Ram Shridhar Vaidya and Naresh Kumar Goyal v. Union of India, which reiterated that preventive detention is intended to prevent activities prejudicial to public order and is distinct from criminal prosecution aimed at punishing past acts.

Applying these principles, the Court held that the contention that preventive detention could not be invoked because the petitioner had been granted bail in criminal cases was legally untenable.

The Court further observed that preventive detention operates in a different field from criminal prosecution. In criminal proceedings, guilt must be established beyond reasonable doubt, whereas in preventive detention the detaining authority must arrive at a subjective satisfaction that detention is necessary to prevent the detenu from engaging in similar activities in the future, the court underscored.

The Court also addressed the argument that the detention order mistakenly referred to another person in its concluding paragraph. It noted that the record revealed that the detaining authority had issued a corrigendum clarifying that the order related to the petitioner and that the reference to another name was a typographical error.

Concluding that the detention order had been passed after consideration of the petitioner's past activities and the material placed before the detaining authority. It found that the grounds of detention were definite and that the statutory and constitutional requirements relating to supply of material and communication of grounds had been complied with.

Finding no illegality or infirmity in the detention order, the Court upheld the order of preventive detention.The habeas corpus petition was accordingly dismissed.

Case Title: Shokat Ali v. UT of J&K & Ors.

Citation: 2026 LiveLaw (JKL)

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