High Court expounds: In preventive detention cases, justification of such detention is suspicion and reasonability, Read Judgment

The Court highlighted the preventive nature of detention laws and the serious threat posed by illicit drug trafficking to public health and safety, stressing the importance of maintaining public order.

High Court Bench expounded that "In preventive detention cases no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability."

The petitioner, Amjad Khan, challenged the detention order passed by the Divisional Commissioner, Jammu, dated 15.02.2024, which placed him under preventive detention to prevent him from engaging in illicit trafficking of narcotic drugs and psychotropic substances under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The detenu was detained based on activities that posed a serious threat to public health and welfare. The petitioner sought to quash the detention order and secure his release.

The petitioner argued that the detention order is unconstitutional, illegal, and in violation of the procedural safeguards. The major arguments include:

1. The detaining authority failed to adhere to the procedural safeguards prescribed under Article 22(5) of the Constitution and relevant provisions of the Prevention of Illicit Traffic Act.
2. The detenu was not provided with crucial documents, including statements of witnesses, seizure memos, and a dossier, which hindered his ability to make an effective representation.
3. The detention order was passed without proper explanation in the native language of the detenu, a breach of constitutional and legal safeguards.
4. The detaining authority did not provide compelling reasons for the detention, and the subjective satisfaction required for preventive detention was not adequately demonstrated.
5. The detaining authority failed to comply with the statutory period for approval of the detention by the Government and did not refer the case to the advisory board, further violating legal procedures.

The respondents, in their counter-affidavit, asserted that the detenu's actions were a serious threat to public order, health, and welfare. They contended that all relevant material supporting the detention order was provided to the detenu at the time of executing the warrant. The respondents rejected the claim that the detenu was deprived of the necessary documents, insisting that all materials relied upon were shared with him. They maintained that the detaining authority acted within its powers and adhered to the legal procedures in issuing the detention order.

The Court examined the detention record, which included a Receipt of Grounds of Detention and Execution Report, revealing that the detenu had received 27 leaves of material, including the grounds of detention and related documents. These were read over and explained to the detenu in Hindi and Dogri, languages he fully understood. Thus, the Court found the petitioner's contention to be without merit, stating, "the contention of learned counsel for petitioner that material relied upon by detaining authority to issue impugned order of detention had not been served upon detenu, is misconceived."

The Court also reviewed the grounds of detention, which relied on FIRs No. 436/2018 and 601/2023, as well as a preventive measure under Section 107/151. The case was referred to the Advisory Board, which opined that there was sufficient cause for the detenu's detention.

The Court emphasized that preventive detention laws are not punitive but preventive, and that such laws are necessary for maintaining public order. "In preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability."

The Court reiterated that preventive detention is based on the "reasonable probability of detenu acting in a manner similar to his past acts, aimed at preventing further actions prejudicial to society.” The Court further noted that a single act could suffice for preventive detention, refuting the petitioner's argument for multiplicity of grounds.

The Court referred to Section 2(e) of the Act of 1988, which defines "illicit traffic" in narcotic drugs, and highlighted the severe threat posed by drug trafficking to public health, safety, and national security.

The Court also cited the Supreme Court's observations in the case of Prakash Chandra Mohan v. Commissioner, which recognized that while procedural safeguards are vital, national security and self-preservation may, in certain circumstances, override individual rights. "The law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority."

The Court found that the instant writ petition was without merit and, accordingly, dismissed it along with the connected CM(s). The detention record was ordered to be returned to the counsel for the respondents.

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