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Synopsis

In a recent ruling, the High Court of Jammu & Kashmir and Ladakh has held that preventive detention, being a measure to prevent illegal activities rather than a criminal proceeding, requires strict adherence to the safeguards provided under the law and any violation of the safeguards constitutes an illegality by the authorities.

Justice Puneet Gupta, presiding over the court, made the observation while quashing the detention order issued by the Divisional Commissioner, Kashmir, against Manzoor Ahmad Bhat. The court found that the order lacked essential details, specifically the mention of bail granted to Bhat, thus rendering the detention order illegal. “The preventive detention being not a criminal proceedings and is only with a view to prevent the petitioner from indulging in illegal activities, the safeguards provided in the Act have to be scrupulously followed by the authorities and any violation of the same will be illegality committed by the concerned authorities,” the court held.

The case involved a habeas corpus plea filed by Manzoor Ahmad Bhat, through his father, challenging the detention order on several grounds. The petitioner argued that the order was issued without proper application of mind, as the grounds mentioned were vague and failed to acknowledge the bail granted to him by the trial court under the Narcotic Drugs and Psychotropic Substance (NDPS) Act, 1988. Additionally, the petitioner claimed that there was no substantial material to justify the detention and that his representation had not been heard by the authorities either in person or through his counsel or friend.

The petitioner's counsel, Advocate Usman Gani, contended that the detention order was flawed due to the detaining authority's failure to acknowledge the bail granted on May 22, 2023. The petitioner was apprehended under the NDPS Act but was subsequently granted bail, a fact not mentioned in the detention order. This omission, according to the petitioners, indicated a lack of proper application of mind and transparency on the part of the authorities.

Contrarily, the respondents, represented by Senior AAG Mohsin Qadiri, in their counter-affidavit, defended the detention order, asserting that all legal formalities were complied with. It was argued that Bhat was influencing the youth and promoting drug addiction. Further, it was stated that the Advisory Board and the government had confirmed the detention. The respondents maintained that the omission of the bail detail did not impact the legality of the detention order, as all relevant information was included in the dossier.

After hearing arguments from both sides and examining the detention record, the court ruled that the non-mention of the bail granted to Bhat was a critical omission that invalidated the detention order. The court emphasised that “It is trite 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.”

The court further rejected the argument of the respondents, stating that “the non-mentioning of bail in the detention order is not fatal cannot be accepted. The Registration of FIR against the petitioner is the core ground for passing the detention order, therefore, the non-mentioning of the same in the detention order renders the detention order illegal.”

The court also addressed the delay in considering Bhat's representation, noting that the authorities took over two months to respond without providing a valid reason for the delay.

In conclusion, the court quashed the detention order dated July 06, 2023, stating that “The detention order is required to be quashed on the aforesaid ground of non-mention of bail order.” Therefore, the court ordered the immediate release of Manzoor Ahmad Bhat.

 

Cause Title: Manzoor Ahmad Bhat v U.T. of Jammu and Kashmir [HCP No.18/2023]