Excelsior Correspondent
SRINAGAR, Feb 1: High Court has ruled that there is no bar for the authority to put a person under preventive custody while passing detention against him as it is the satisfaction of executing authority of a reasonable probability of detenue acting in a manner similar to his past acts.
While upholding the detention of Amjad Khan of Udhampur involved in Narco offences, Justice Vinod Chatterji Koul recorded that the power of preventive detention is exercised in reasonable anticipation and it may or may not relate to an offence. It does not overlap with the prosecution even if it relies on certain facts for which prosecution may be, or may have been, launched.
“Its basis is the satisfaction of the Executive of a reasonable probability of detenue acting in a manner similar to his past acts, and preventing him by detention from doing so. An order of preventive detention is also not a bar to prosecution,” Justice Koul said.
The court passed these findings after the counsel for the detenu argued that the detaining authority has not assigned any compelling and cogent reason for passing the order of detention. The order of detention is not based on any cogent material which could necessitate the passing of the order of detention against the detenue under preventive law.
“…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,” read the judgment.
“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 underscored.
Observing that the preventive detention is an anticipatory measure, the court said that it is resorted to when the executive is convinced that such detention is necessary to prevent a person detained from acting in a manner prejudicial to certain objects which are specified by the law.
The authority, court added, making the order of detention, cannot always be in possession of full detailed information when it passes such order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of impending commission of a prejudicial act.
“The Act of 1988, therefore, requires that the Central Government or a State Government must be satisfied with respect to any person that with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained”, the court said adding with “In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention”.
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