The Jammu & kahmir and Ladakh High Court has reiterated that pendency of prosecution is no bar to an order of preventive detention and an order of preventive detention is also not a bar to prosecution.
The single-judge bench of Justice Moksha Khajuria Kazmi cited verdict of Constitution Bench of the Supreme Court in Haradhan Das Vs. State of West Bengal, 2012 Latest Caselaw 738 SC to further assert that discharge or acquittal of a person will not preclude detaining authority from issuing a detention order.
"Even one prejudicial act can be treated as sufficient for forming requisite satisfaction for detaining a person. 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 Court was dealing with a writ seeking direction to Detention Authority to release the Detenu placed under detention in terms of Section (3) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
It was the case that Detaining Authority has passed the detention order on the basis of grounds of dossier, prepared by the Police. It was urged that the detenue has been falsely implicated in case both the cases.
The Counsel for the petitioner stated that detenue is an elected Sarpanch of village Darpora and his wife works as a shopkeeper to earn the livelihood from the genuine source of income to feed the family comprising of wife, ten minor children and old aged parents of the detenue. His next submission was that detenue was required to be supplied all documents, statements and other material relied upon in the grounds of detention, so as to enable him to make an effective and meaningful representation against his detention and failure to supply such material/documents, amounts to violation of Article 22(5) of the Constitution of India.
Reliance was placed on Biram Chand Vs. State of Uttar Pradesh & Ors, 1974 Latest Caselaw 74 SC. Mention was also given to Naresh Kumar Goyal Vs. Union of India & Ors=, 2005 Latest Caselaw 545 SC
It was his contention that in both the FIR’s the detenue was bailed out by the competent court, however after a gap of about two years and six months, detenue has been detained in terms of the impugned detention order on the bais of the material/dossier.
It was being averred that there is no material, evidence or document against the detenue and it is not known, as to how and on what material the Detaining Authority has attained satisfaction to pass the detention order. It was further stated that no material has been furnished to the detenue so as to enable him to make an effective representation.
The respondents in their counter affidavit have resisted the petition on the ground that detention order has been passed in exercise of powers vested with Detaining Authority in terms of Section 3 of NDPS Act, with a view to prevent the detenue from indulging in illegal trade of illicit traffic in narcotic drugs and psychotropic substance.
It was insisted that drug trafficking poses a huge threat to the society for the reason that proceeds, thereof can be utilized for financing the other criminal activities and that detenue has made the life of peace loving citizens.
It was further stated that consignment seized from detenu’s possession shows that detenue is fully involved in illegal trade with conscious mind, working in an organized manner, is a threat for sustaining moral values of the society, and to the welfare of young generation.
It was further stated that the detention order does not suffer from any malice or legal infirmity, inasmuch as, the safeguards provided under the Constitution have been followed while ordering the detention of the detenue, as such, challenge thrown to the impugned order of detention is not sustainable. The basis of detention was the satisfaction of the Executive of a reasonable probability of likelihood of detenue acting in a manner similar to his past acts and preventing him by detention from doing the same.
The Court agreed with the respondent's submissions. Apart from the above reiteration, the Court aslo highlighted the other aspect of the ruling whereby the Apex Court succinctly pointed out difference between preventive and punitive detention in the following words:
“The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The, basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent.”
Further analysing facts of the case, the Court referred to Union of India & Anr Vs. Shrimati Chaya Ghoshal & Anr, 2004 Latest Caselaw 711 SC to state that it is not a number of acts that are to be determined for detention of an individual but it is the impact of the act(s) which is material and determinative.
"In the instant case the acts of detenue relates to drug trafficking, which has posed serious threat, apart from health and welfare of the people, to youth, most particularly unemployed youth, to indulge in such nefarious acts."
The writ was accordingly dismissed.
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