PITNDPS Act| Preventive Detention Orders Are Valid Despite Ongoing Trial In Substantive Offences: J&K&L HC
The Jammu & Kashmir & Ladakh High Court observed that the preventive detention orders under Section 3 of The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,1988 by detaining authority are valid despite ongoing trials in substantive offences.
The Court was hearing a petition challenging the order by the detaining authority whereby the Petiitoner Radaqat Ali was taken into preventive custody in terms of Section 3 of PITNDPS Act,1988.
The bench of Justice Sanjay Dhar observed, “…an order of preventive detention can be passed even during the period when the prosecution is pending against the detenue before the criminal Court..it is clear that merely because a person is undergoing trial in substantive offences, the detaining authority cannot be debarred from passing an order of preventive detention against him, if it is satisfied that such person is indulging in illicit traffic of drugs.”
The Court noted that the main ground that was urged by the petitioner for assailing the impugned order of detention is that the petitioner was already facing trial/investigation in all the four cases mentioned, there was no compelling circumstance for the detaining authority to pass the impugned order of detention.
The Court said that merely because the petitioner is facing prosecution in all four FIRs, which are mentioned in the grounds of detention, does not debar the detaining authority from passing the order of preventive detention against the petitioner.
The Court relied on the decision of the Supreme Court in Haradhan Saha Vs. State of W.B. (1975) 3 SCC 198 and quoted, “The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution”
“Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of the proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.”, the Court quoted further.
The bench again relied on the decision of the Supreme Court in Naresh Kumar Goyal Vs. Union of India (2005) 8 SCC 276 and quoted, “It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, the avowed object of which being to prevent the anti-social and subversive elements from imperilling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive Detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so.”
The Court said that as the petitioner was found involved in as many as four FIRs during the last five years for possession of Heroin, a contraband substance there was enough material before the detaining authority to record its subjective satisfaction that despite the petitioner having been booked for substantive offences, he continues to indulge in illicit traffic of contraband substances.
The Court noted that it cannot be stated that there were no compelling circumstances for passing the impugned detention order.
Consequently, the Court dismissed the petition.
Cause Title: Rafaqat Ali v. UT of J&K
Appearance:
Appellant: Adv. M.A. Bhat
Respondent: Adv. Chetna Manhas and AAG Amit Gupta
