[Public Safety Act] Preventive Detention Of ‘Person Under Custody’ Based On His Past Conduct Is Permissible: J&K&L HC

The Jammu & Kashmir & Ladakh High Court recently held that detention of a person under the Public Safety Act does not amount to arrest for the commission of any offence under a penal statute but a preventive action to thwart any potential prejudicial act on the part of the person detained based on his antecedents and as such producing such a detenue before a Magistrate within 24 hours does not arise.

While clarifying that the contention of the Appellant that invoking preventive detention is not warranted since he was already in detention and could not have carried out any prejudicial act, is devoid of merit, a Division Bench of Chief Justice N. Kotiswar Singh and Justice Puneet Gupta observed that “the detaining authority based on his recent past activities and antecedents arrived at the subjective satisfaction that the normal laws would not be sufficient to deter from carrying out prejudicial activities”.

Advocate Junaid Rashid appeared for the Appellant, whereas, GA Furqan Yaqub appeared for the Respondent.

In a nutshell, the Appellant was earlier booked under Sections 302, 307 RPC, 7/27 Arms Act, and 4/2015 Explosive Substances Act in connection with which, he was granted bail as he was found to be a juvenile. Later, he was arrested for offences under Section 121-IPC, 18, 20 & 39 UAPA in which also he was granted bail. Thereafter, he was again arrested in connection offences under Section 7/25 Arms Act and 23 UAPA, but he did not apply for bail, and accordingly, he remained in custody. While he was in custody, a detention order was passed. Hence, the appeal by the Appellant contended that if he was already in custody, there was no occasion for the authorities to invoke the preventive detention law under the J&K Public Safety Act.

After considering the submissions, the High Court found that the subjective satisfaction of the detaining authority on the propensity and likelihood of the Appellant to engage in prejudicial acts is based on germane materials of his recent activities as evident from the involvements in the FIRs registered under Sections 302, 307 RPC, 7/27 Arms Act, and 4/2015 Explosive Substances Act, FIR No. 54/2019 under Section 121-IPC, 18, 20 & 39 UAPA.

The High Court also upheld the findings of the Single Judge that the purpose of invoking the law of preventive detention to detain a person is not to punish for any alleged illegal act but to prevent him from engaging in any act prejudicial to the security of the State or public order or such act contemplated under the J & K Public Safety Act, 1978.

Therefore, the Bench observed that if such subjective satisfaction is based on past conduct and relevant materials, detention of such a person will be permissible.

“Further, the detention order was issued by the detaining authority, i.e., the District Magistrate and as such executing the detention order by a Sub-Inspector on the strength of the detention order passed by the District Magistrate would not in any way affect the validity of the detention order”, added the Bench.

Noticing that the Appellant was arrested in connection with two FIR cases earlier but was released on bail, the High Court said that from the conduct of his recent past, it can be reasonably inferred that he would continue to engage in prejudicial acts once he is released on bail, warranting his preventive detention under the Act.

Hence, not finding any irregularity in the conclusion arrived by the Single Judge, this High Court Division Bench dismissed the appeal.

Cause Title: Muntazir Ahmad Bhat v. Union Territory of JK and Anr.

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