Preventive detention cannot be based on stale incident: Jammu and Kashmir High Court

The High Court of Jammu and Kashmir and Ladakh recently quashed a preventive detention order passed against a man while observing that stale incidents cannot be the basis of such detention [Shafayat Amin Shah Vs Union Territory of J&K and others]..The Court made the observation after it was informed of a two-year time gap between the date of detention and the criminal case filed under the Unlawful Activities Prevention Act (UAPA), which was cited as the basis for the detention. .The Court noted that the detaining authority appeared to be unaware whether the detenue was even arrested in the UAPA case."It is nowhere discernible from perusal of the grounds of detention as to whether the detenu had been arrested in connection with case FIR no.130/2020 or not, and/or in the event of his arrest he had applied for bail before the competent court of law or bail had been granted in his favour," the Court said. .Justice Sanjeev Kumar proceeded to emphasise,"The order of detention must have proximate and live link with the activities of the detenu. The detention based on stale incident is vitiated in law. I do not require many judgements to hammer this settled legal position.".Notably, the Court also highlighted that the detention order would be vitiated if the detenu is not supplied with the material based on which the detention order is passed, thereby affecting his right to make an effective and meaningful representation against the detention..The Court was dealing with a writ petition challenging a preventive detention order issued in April 2022.Among other grounds, the petition filed through the detenue's father also claimed that relevant material was never served on the detenue regarding why he was being detained. This prevented him from making an effective and meaningful representation against his detention, the Court was told. .Finding substance in this allegation, the Court said,"Simply because a communication has been issued to the detenu informing him about his right to make a representation is not sufficient. As is evident from perusal of the xerox copy of the detention record, the material relied upon by the detaining authority has not been supplied to detenu so as to enable him to make a representation against his detention.".The Court further took critical note of the fact that the detaining authority had not stated any compelling reason warranting the preventive detention of the detenue."Subjective satisfaction without taking relevant material into consideration and non-application of mind by the detaining authority are the grounds that go to the root of detention and vitiates it ab initio. In that view of the matter, the order of detention is clearly vitiated by total non-application of mind by the detaining authority," the Court said..The Court, therefore, proceeded to allow the writ petition and quashed the detention order issued by the District Magistrate, Shopian..Advocate Molvi Aijaz appeared for the petitioner. Government Advocate Sajad Ashraf appeared for the respondent-authorities. .[Read Judgment]