J&K High Court: Preventive detention cannot be based on a stale incident

The Court made the observation while quashing a preventive detention order passed last year in connection to a case registered two years earlier, deems it to be a case of non-application of mind by the detaining authority

A preventive detention order issued against a man was recently quashed by the High Court of Jammu and Kashmir and Ladakh, which noted in its judgment that preventive detention could not be justified based on previous incidents. In the case of Shafayat Amin Shah v. Union Territory of J&K and others, the Bench of Justice Sanjeev Kumar noted that the court was informed of a two-year time gap between the date of detention and the criminal case filed under the Unlawful Activities Prevention Act (UAPA), which was cited as the basis for the detention.

The Court was dealing with a writ petition, filed through the detenue’s father, challenging a preventive detention order issued in April 2022. The bench highlighted in its judgment that the detenu had challenged the impugned prevention detention order on the basis that there if no explanation as to why the detenu had not been arrested in those two years if the disclosures had been made available to the authorities then. Additionally, the detenu alleged that since the relevant documents being relied upon the authorities were never served to him, it disabled him to make an effective and meaningful representation against his detention.

Observations of the Court:

After hearing the arguments put forth by both the parties, Justice Sanjeev Kumar observed that impugned order of detention does not sustain in the eye of law as there is non-application of mind on the part of detaining authority. The court further observed that it appeared to him that the detaining authority did not appear to know whether the detenu had been apprehended in the UAPA case or not, or the events in the case he had applied bail for.

“It is nowhere discernible from perusal of the grounds of detention as to whether the detenu had been arrested in connection with case FIR no.130/2020 or not, and/or in the event of his arrest he had applied for bail before the competent court of law or bail had been granted in his favour,” the Court said in its judgment. (Para 5)

The Court proceeded to emphasise the following:

The order of detention must have proximate and live link with the activities of the detenu. The detention based on stale incident is vitiated in law. I do not require many judgments to hammer this settled legal position.” (Para 10)

Notably, the Court found substance in the allegations raised by the detenu, and highlighted in its judgment that the detention order would be vitiated if the detenu is not supplied with the material based on which the detention order was passed, thereby affecting his right to make an effective and meaningful representation against the detention.

“The detention order is vitiated if the requisite material relied upon is not supplied to the detenu, in that, if affects the vital constitutional rights of the detenu to make an effective and meaningful representation. Simply because a communication has been issued to the detenu informing him about his right to make a representation is not sufficient. As is evident from perusal of the xerox copy of the detention record, the material relied upon by the detaining authority has not been supplied to detenu so as to enable him to make a representation against his detention.” (Para 9)

The Court further took critical note of the fact that the detaining authority had not stated any compelling reason warranting the preventive detention of the detenu.

“Subjective satisfaction without taking relevant material into consideration and non-application of mind by the detaining authority are the grounds that go to the root of detention and vitiates it ab initio. In that view of the matter, the order of detention is clearly vitiated by total non-application of mind by the detaining authority,” the Court said.

 Judgment of the Court

Based on the observation made the Court above, the Bench proceeded to allow the writ petition and quashed the detention order issued by the District Magistrate, Shopian.

The judgment can be read here:



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