A Preventive Detention Order can be issued either before or during a trial, according to the Jammu and Kashmir and Ladakh High Court.
The Jammu & Kashmir and Ladakh High Court has stated that the authority for preventive detention does not interfere with prosecution, even if it is based on facts that could lead to prosecution. The Court was reviewing a Petition aimed at canceling the order from the Divisional Commissioner, Kashmir, under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, which placed the individual under preventive detention to stop him from engaging in illicit activities. Justice Vinod Chatterji Koul noted, “Preventive detention is based on reasonable anticipation. It may not necessarily connect to a specific crime. It does not conflict with prosecution, even if it uses facts that could support prosecution. Preventive detention can occur before or during prosecution, with or without it, and even after someone is discharged or acquitted. Ongoing prosecution does not prevent preventive detention, nor does preventive detention prevent prosecution.”
The Petitioner was represented by Advocate Asif Ali, while the Respondent was represented by Government Advocate Jehangir A. Dar. The Respondents, in their affidavit, claimed that the individual is involved in the illegal trade of narcotic drugs and psychotropic substances. Counsel for the Petitioner argued that the evidence used by the detaining authority to issue the detention order was not shared with the detainee, which goes against the constitutional and legal protections outlined in Article 22(5) of the Constitution of India. They also claimed that the detaining authority did not provide specific accusations against the detainee, instead making vague claims. Additionally, it was pointed out that the detaining authority failed to give strong and clear reasons for the detention order and did not indicate where the detainee could submit a representation, nor did they inform the detainee to do so before the order was approved by the Government.
The Court noted that the evidence used by the detaining authority had indeed been provided to the detainee, and the reasons for detention were explained to the detainee in Urdu/Kashmiri. The Court found that the reasons given for the detention were strong and clear, highlighting issues like drug dealing among local youth, which negatively affects the younger generation. It was clear from the detention grounds that the detainee had a history of engaging in activities that threaten the health and well-being of the community, particularly the youth. The Court remarked that preventive detention is based on reasonable anticipation and does not necessarily relate to a specific crime, and it is distinct from prosecution.
The text discusses the Supreme Court’s ruling in Prakash Chandra Mohan v. Commissioner, 1986. It highlights that while public officials have a strong duty to follow written laws that protect individuals, this duty is not always the most important. In some cases, the need for self-preservation and national security can take precedence.
Cause Title: Shahid Ahmad Bhat vs. Union Territory of J&K and others
