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- Preventive Detention | J&K High...
Preventive Detention | J&K High Court Orders Compassionate Release Of Detenu To Mourn Brother's Demise
Basit Amin Makhdoomi
22 Nov 2023 5:00 AM GMT
While granting temporary release to a person under preventive detention, the Jammu & Kashmir and Ladakh High Court has observed that the stringent provisions outlined in Section 13 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT-NDPS Act) do not serve as a hindrance for a constitutional court exercising its jurisdiction under Article 226...
While granting temporary release to a person under preventive detention, the Jammu & Kashmir and Ladakh High Court has observed that the stringent provisions outlined in Section 13 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PIT-NDPS Act) do not serve as a hindrance for a constitutional court exercising its jurisdiction under Article 226 of the Constitution to order release of a detainee.
"...this Court has a power vesting in it in exercise of its constitutional jurisdiction under article 226 of the constitution of India, relatable to the present pending petition of the petitioner seeking quashment of his preventive detention, to attend to the situation which has come to confront the applicant/petitioner warranting him to be with his parents in the time of distress and grief."
The observations were made by Justice Rahul Bharti while hearing a detenu's plea for temporary release on the ground that his brother had passed away. The detenu's preventive detention period of 1 year was reportedly nearing its end, although his petition challenging the preventive detention was awaiting adjudication since 31.01.2023.
The detenu/petitioner had preferred the application seeking temporary release through his father to attend to family responsibilities and rituals associated with his brother's demise.
Noting that the applicant/petitioner’s father was on record to say that he had lost his son, the court believed that the petitioner had "lost his brother and he intends to be with his grieving parents so as to share with them moment of solace and to attend to post burial religious rituals with respect to demise of his brother".
Referencing a constitutional bench judgment viz. "Sunil Fulchand Shah vs. Union and Ors" , which dealt with a similar provision under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Justice Bharti said that the rigors of Section 13(7) of the PIT-NDPS Act would not impede the constitutional court's authority to order temporary release of a detenu under Article 226, especially in cases where justice demands such intervention.
Recognizing the need for compassion, the court exercised its constitutional jurisdiction and directed the release of the detenu for a period of 5 days.
Before parting with the order, the court recapitulated Supreme Court's note of caution in Sunil Fulchand Shah that the power to order temporary release should be sparingly used and the task of setting conditions for parole shall be left for administrative or jail authorities.
Counsel For Petitioner: Mr. Ateeb Kanth, Advocate
Counsel For Respondents: Mr. Sajad Ashraf, GA
Case Title: Jahangeer Ahmad Mugloo Vs UT of J&K, WP(Crl) 34/2023
Citation: 2023 LiveLaw (JKL) 295
