Srinagar, Jan 18: Quashing detention orders against three alleged drug peddlers while upholding one, the High Court of Jammu & Kashmir and Ladakh observed that unless there are fresh grounds of detention, a person cannot be put under preventive detention on the basis of the grounds of detention which have formed the basis of an earlier FIR wherein he has been bailed out.
The court held that delay in passing and execution of a preventive detention order not only defeats the very purpose of such order, “but more importantly, creates a doubt as to the necessity of adopting such a harsh measure against an individual, whereby the individual’s liberty is curtailed on suspicion alone.”
The court noted that preventive detention being a drastic State action based only upon suspicion arising from a person’s past activity, can be allowed, as the settled legal position mandates, only if there is a live and proximate link between a person’s past activities and the need for passing of a preventive detention order.
The bench said that preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity.
Allowing separate habeas corpus petitions, the court struck down detention orders under J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, (PITNDPS) 1988 against Tanveer Ahmad Najar, Mohammad Ramzan Sofi of Bandipora, and Mukhtar Ahmad Bhat of Srinagar with a direction to respondents to release the detenues from the preventive custody forthwith provided they are not required in connection with any other case.
In Najar’s case, the court pointed out that the grounds of detention do not detail as to what were the subsequent activities of the detenu from the date when some drugs had been recovered from his possession on October 23, 2016.
“The incident of the year 2016 cannot be made to base preventive detention in the year 2022, for want of proximate link between the alleged activities of the appellant-detenue and the apprehension of the detaining authority to deter him from such activities,” the bench said while quashing detention order against Najar.
Although, the court upheld the detention order against Jahangir Ahmad Dar who had sought deferment of execution of detention order on the ground that he is suffering from serious ailment.
The court of Justice Sanjay Dhar while declining to grant relief to Dar noted it cannot be stated that his condition is of such a serious nature as would endanger his life if he is taken into preventive custody.
“The ground urged by the petitioner in this regard is without any merit,” the court said.
Justice Dhar while quashing detention orders of Sofi and Bhat observed that the vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.
The bench said that the detenu cannot be expected to make an effective and purposeful representation which is his constitutional and statutory right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which detention is based, is supplied to the detenue.
The court said that the failure on the part of detaining authority to supply the material renders detention order illegal and unsustainable.
