Accused Cannot Be Put Under Preventive Detention On Grounds That Releasing Him On Bail Affects Public Confidence: J&K High Court

The Jammu and Kashmir High Court held that mere fact that a person has secured bail from the court cannot be grounds for imposing preventive detention on the pretext of an apprehension that enlargement of the detenu will have an impact upon public faith. The respondents had argued that that since detenu “managed” to get bail in the said case showing that normal law has proven insufficient. A bench of Justice Rajesh Sekhri observed that that an accused involved in the commission of an offence has a right to seek his enlargement on bail from the competent court of law and if chooses to apply for the bail, it is for the prosecution to oppose it initially and if the accused secures the bail, it is again for the prosecution to seek appeal or cancellation of the bail as an efficacious remedy. The court added that the offence may be a serious law and order problem but does not aggravate to the issue of the public order, which is a category of its own and a sole criminal activity attributed to the detenu does not appear to have disturbed normal life of people of a district. The court relied on the Banka Sneha Sheels vs. State of Telangana & Ors wherein the Supreme Court held that a person cannot be put under preventive detention on the premise that he was enlarged on bail by a competent court. The court also noted that grounds of the detention calling the detenu a notorious drug peddler was a vague allegation and had he been a chronic miscreant as so claimed he would have been booked under multiple cases and still could be dealt with in accordance with the ordinary law of the land. The court said that the statements with respect him being active member of a larger drug mafia are unfounded allegation having no bearing to the maintenance of the public order and does not satisfy the requirement under section 8 of the PSA and due to the vagueness of the act, detenu was prevented from making an effective representation. It said that detaining authority is under a constitutional obligation to provide in clear terms, complete particulars of all the criminal activities attributed to the detenu and if such acts are covered under the existing penal law then resort to PSA is uncalled for. The court quashed the detention and accordingly directed the immediate release of the petitioner from the detention. BACKGROUND The petitioner challenged the detention order passed by the Divisional Commissioner under Section 3 of the Prevention of Illicit Traffic and Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). The petitioner was directed to be detained for a period to be specified by the Government/Advisory Board. The father of the detenu filed the writ petitioner challenging the order of detention on behalf of his son. The grounds raised by the petitioner was primarily emphasizing on the point that the offence at hand was a ordinary law and order problem and not had it escalated to public order issue and also on the point that the grounds provided by the detaining authority were vague and unfounded effecting the rights of the detenu in making an effective representation APPEARANCE: Ateeb Kanth, Advocate For Petitioner Zahid Q Noor, GA For Respondents Case-Title: Adil Hussain Mir vs UT of JK and others, 2025Click Here To Read/Download Order

Accused Cannot Be Put Under Preventive Detention On Grounds That Releasing Him On Bail Affects Public Confidence: J&K High Court

Aleem Syeed

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