“Allegations May Be a Serious Law-and-Order Problem but Certainly Do Not Fall Within the Category of ‘Public Order’”: J&K High Court Quashes Preventive Detention
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rajesh Sekhri quashed a preventive detention order passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act), holding that a person involved in a single criminal activity cannot be subjected to preventive detention if the ordinary law is competent to deal with such conduct. The Court directed the immediate release of the detenue from custody, subject to no other case pending against him.
The petition before the High Court challenged the detention order bearing No. DIVCOM(K)/45/2024 dated 16.04.2024 issued by Respondent No.2 under Section 3 of the PITNDPS Act. The detenue was directed to be detained in Central Jail Kot Bhalwal, Jammu, for a period to be decided by the Government or the Advisory Board.
The detenue, through his father, filed the writ petition seeking issuance of appropriate writs for his release, contending that the grounds of detention were vague and did not satisfy the definition of “Public Order” under Section 8 of the Jammu & Kashmir Public Safety Act, 1978 (PSA).
The respondents, through a counter affidavit, alleged that the detenue was a notorious drug peddler and a principal operator in a drug syndicate that endangered public health, particularly the youth of District Anantnag. They maintained that he was involved in the sale of brown sugar, heroin, and charas, which posed a serious threat to public welfare and justified the preventive detention.
According to the respondents, the detenue had been booked in FIR No. 133/2022 under Sections 8/21-22 of the NDPS Act at Police Station Bijbehara. Following his bail in the said case, they contended that normal criminal law was insufficient to prevent his continued illegal activities. Accordingly, the impugned detention order was passed and later confirmed by the Government on 10.06.2024 under Section 9(f) read with Section 11 of the PITNDPS Act for a detention period of one year.
The petitioner contested that the detention order stemmed solely from a single FIR and that no other evidence of continued illegal activity existed. He argued that preventive detention could not be invoked merely because the detenue had secured bail in the ordinary course of criminal procedure.
The respondents asserted that the grounds of detention had been communicated in a language understood by the detenue and all procedural requirements were fulfilled. They also claimed that the Advisory Board found sufficient cause for the detention and the same was confirmed by the competent authority.
The Court recorded: “It is settled law that if ordinary law of the land is competent to deal with criminal activities of a criminal, recourse to the provisions of preventive detention laws are illegal.”
It further observed: “The detenue is found involved in a single FIR no. 133/2022 for offences under Section 8/21-22 of NDPS Act of police station, Bijbehara. The charge sheet of the said case stands produced in the court of Principal Sessions Judge, Anantnag on 12.10.2022.”
The Court took note of the respondents’ submission that the detenue had secured bail and thus preventive detention was invoked. However, it stated: “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 he chooses to exercise his right, the prosecution... has an efficacious remedy... to seek cancellation of his bail.”
Relying on the judgment in Banka Sneha Sheels v. State of Telangana & Ors (2021) 9 SCC 415, the Court recorded: “The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public... is make believe and totally absent in the facts of the present case.”
Further, the Court noted: “The allegations leveled against the detenue may be a serious law-and-order problem but certainly do not fall within the category of ‘Public Order’.” It recorded that the apprehension of public harm due to the detenue’s enlargement on bail “is unfounded and cannot form basis for putting him under preventive detention.”
On the issue of vagueness, the Court highlighted the grounds of detention: “You have transformed into a notorious illicit drug peddler becoming the principal dealer of narcotic drug and psychotropic substances in Bijbehara area and its surroundings...” However, the Court held: “The vague allegations... do not satisfy the requirements envisaged under section 8 of PSA... The sole criminal activity attributed to the detenue does not appear to have disturbed normal life of people of District Anantnag.”
It concluded: “A person involved in a solitary criminal activity cannot be put under preventive detention, if ordinary law of the land is competent and sufficient to deal with such activity.”
The Court held: “The present petition is allowed and impugned order of detention is quashed.”
It directed: “The detenue is directed to be released forthwith from the detention, provided he is not involved in any other case or offence.”
It also ordered: “Record produced by learned counsel for the respondents is returned back.”
Advocates Representing the Parties
For the Petitioners: Mr. Ateeb Kanth, Advocate
For the Respondents: Mr. Zahid Q Noor, Government Advocate
Case Title: Adil Hussain Mir v. Union Territory of Jammu and Kashmir and Others
Case Number: HCP No. 287/2024
Bench: Justice Rajesh Sekhri
[Read/Download order]
