Assertion Of Accused Being Habitual Offender Not Sufficient For Preventive Detention, Must Establish Continuous Commission Of Offences: J&K High Court

While setting aside a detention order, the J&K High Court held that preventive detention cannot be a punitive measure on the apprehension that the detenu is going to go scot-free in pending trials due to lack of support to the prosecution case.

A bench of Justice Vinod Chatterji Kaul said that when the thread of connectivity between the last incident and the order of preventive detention is lost, the same cannot be restored by the mere assertion of the petitioner being a habitual offender as made in the grounds for detention in the absence of material to substantiate the propensity to commit a crime.

“The detaining authority must establish habituality of commission of offences which could be directly linked to a pattern of behaviour. In order to establish such pattern of behaviour that would reasonably indicate continuing commission of offences, the detaining authority must establish intermittent commission of offences which would indicate a regular pattern," the court said.

BACKGROUND:

In the present case the District Magistrate, Srinagar passed a detention order against the petitioner under the Public Safety Act, 1978 in order to prevent him from acting prejudicial to the public order. The detention order mentioned that the petitioner was a fraudulent person involved in cheating the general public and causing public disorder in Srinagar.

The appellant argued that the criminal proceedings were already pending against the Petitioner and there was no need to substitute the said proceeding by executive order. It was further argued that the grounds relied on by the detaining authority were stale and not sufficient to invoke preventive detention.

The respondent in response argued that the fraudulent history of the petitioner posed a serious threat to the public order of the area and that the detention was passed after following the due process.

The court emphasized the fact that the petitioner was already facing trial in the regular court for the offences incorporated in the detention order which made it even more necessary for the detaining authority to probe for the proximate and live link to pass such detention order. The court also underlined that no explanation was forthcoming from the Respondent authorities to explain the possible delay in making such detention order after such a delay.

The court relied on Ameena Begum v. State of Telangana and others, (2023) where the Supreme Court held that: “The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. 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.”

Therefore, due to the above-mentioned grounds, the High Court quashed the preventive detention of the petitioner and his release was directed.

APPEARANCE:

Ajaz Ah. Bhat , Advocate for Appellants

Syed Musaib, Dy. AG for respondents.

Case Title: Riyaz Ahmad Azad Alias Azad vs State of J&K &Ors. 2025

Citation: 2025 LiveLaw (JKL) 22

Click Here To Read/Download Order