Non-Mention Of Bail Granted To Accused In FIR-Based Detention Order Renders Detention Illegal: J&K High Court

Quashing a preventive detention order the Jammu & Kashmir and Ladakh High Court has declared that once an FIR is the core ground for passing a detention order, the non-mentioning of bail granted in relation to that FIR renders the detention order illegal.A bench comprising Justice Puneet Gupta based this observation on a settled proposition of law that the detaining authority is required to disclose all the relevant material in the detention order as it would reflect the subjective satisfaction of the detaining authority while passing the detention order.“No doubt, the subjective satisfaction of the detaining authority is not to be scrutinized by this court as a court of appeal but at the same time the court is not completely debarred from prima facie looking into the satisfaction of the detaining authority in the proceedings like the present one”, the bench underscored. The court made these observations in a case involving Manzoor Ahmad Bhat, a resident of Kashmir, who was detained by authorities under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPS Act) in July 2023. The detention order cited an FIR registered against Bhat, but it did not mention that he had been granted bail in that case just weeks prior to the detention order.Bhat challenged the detention order, arguing that the detention order lacked application of mind, was based on vague grounds, and failed to acknowledge the bail granted to the petitioner. It was contended that the omission of this fact demonstrated non-application of mind by the detaining authority and that there was no substantial material to justify the detention.On the other hand, the respondents, represented by Mr. Mohsin Qadiri, Sr. AAG with Ms. Nadiya Abdullah, Advocate, defended the detention order, asserting that all legal formalities were followed. He argued that the petitioner was involved in influencing young minds towards drug addiction, and the Advisory Board had confirmed his detention. The respondents further maintained that the omission of the bail fact did not affect the legality of the detention order.Justice Gupta, after hearing both sides and reviewing the detention record, found the non-mention of the bail granted to the petitioner in the detention order critical. The detention order had referenced the FIR but failed to note that the petitioner had been bailed out. Terming this omission significant, as the FIR was the core ground for the detention order the court said, “What prevented respondent No.2 from stating the afore stated fact that the bail has been granted to the petitioner by the Court is not made known to the court. The fact of bail having been granted was bound to be reflected in the detention order… The detention order is required to be quashed on the aforesaid ground of non-mention of bail order”.The Court did not find merit in Bhat's argument regarding the lack of relevant materials provided during detention. However, it did take note of another procedural irregularity of the undue delay of over two months by the authorities in considering Bhat's representation against the detention order.Citing the Supreme Court judgment in Sarabjeet Singh Mokha Vs. District Magistrate Jabalpur, Justice Gupta reiterated the fundamental right of a detenu to have their representation considered promptly. The court found the extended delay by the authorities in Bhat's case to be a violation of this right.In light of these observations, the Court ruled in favor of Bhat, quashing the detention order and ordering his immediate release. Case Title: Manzoor Ahmad Bhat Vs UT of J&K Citation: 2024 LiveLaw (JKL) 165Click Here To Read/Download Judgment

Non-Mention Of Bail Granted To Accused In FIR-Based Detention Order Renders Detention Illegal: J&K High Court

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Non-Mention Of Bail Granted To Accused In FIR-Based Detention Order Renders Detention Illegal: J&K High Court

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