Preventive Detention Can Be Ordered Regardless Of Prosecution, In Anticipation Of Discharge Or Acquittal: J&K High Court

The Jammu and Kashmir High Court refused to quash the detention order passed by the Divisional Commissioner, Kashmir, observing that preventive detention does not overlap with the prosecution (in regular courts) even if it relies on certain facts for which prosecution may have been launched.

The court clarified that "An order of preventive detention may be made before or during prosecution, 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 and order of preventive detention is also not a bar to prosecution."

The court also said that the illicit traffic of narcotic drugs and psychotropic substances poses a serious threat to the health and welfare of the people. It stressed that such activities of a considerable magnitude are clandestinely organized and carried on, making it necessary for the effective prevention of such activities by detention of persons concerned in any manner therewith.

A bench consisting of Justice Vinod Chatterji Koul, in examining the question of whether the ordinary laws of the land would have sufficed and whether recourse to preventive detention was unnecessary, observed that it must be borne in mind that the compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty of citizens, would lose their meaning, provide the justification for the laws of preventive detention.

It was further clarified that information with the detaining authorities may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act.

BACKGROUND:

The Petitioner was placed under the preventive detention under Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The grounds of the detention referred to the petitioner as a history-sheeter due to his involvement in two such FIRSs registered against the petitioner under the NDPS Act, 1985. It was provided that the detenu used to sell drugs to the youth in the area, which created huge implications for the young generations.

The court said while deciding the petition for quashing, it could not overlook the significant downside effects of the illicit trafficking of narcotic drugs on the entire society. It said that from public health and safety to narcotic terrorism, the menace that drug trafficking had wreaked across India by severely and specifically impacting the younger generation, cannot be overlooked or ignored.

Accordingly, the High Court dismissed the above Writ Petition.

APPEARANCE:

Asif Ali, Advocate for Petitioner

Jehangir A. Dar, GA for Respondents

Case Title: Shahid Ahmad Bhat vs Union Territory of J&K and others, 2025

Citation: 2025 LiveLaw (JKL) 26

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