| Bail Cannot Cut Detention Chains: HC upholds PSA, PIT-NDPS orders in terror-support, drug menace cases | | | Early Times Report
JAMMU, May 19: Sending a strong legal message on preventive detention, the High Court of Jammu & Kashmir and Ladakh has held that grant of bail in criminal cases does not wipe out the power of the State to order preventive detention, if the detaining authority is satisfied that a person's activities pose a continuing threat to security, public order or public welfare.
Justice M. A. Chowdhary dismissed two separate habeas corpus petitions and upheld detention orders passed under the J&K Public Safety Act and the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, observing that criminal prosecution and preventive detention operate in different fields.
In the first matter, Nazir Ahmad Chak of Kulgam had challenged Detention Order No. 01/DMK/PSA/2025 passed by the District Magistrate, Kulgam, under Section 8 of the PSA. The detention was ordered on the ground that his activities were allegedly prejudicial to the security of the State. The petitioner pleaded that he had already been granted bail in FIR No. 61/2019 and that the bail order had not been challenged by the authorities.
Rejecting the plea, the Court held that bail or pendency of prosecution is not an automatic shield against preventive detention. The Court noted that the detaining authority had considered the bail order and still found sufficient material to justify preventive detention. The respondents had alleged that the detenue was acting as an Over Ground Worker and providing logistic support to banned outfits.
In the second case, Shameem Ahmad Wani of Pulwama had challenged Detention Order No. DIVCOM-"K"/88/2025, passed by the Divisional Commissioner, Kashmir, under Section 3 of the PIT-NDPS Act. The order was issued to prevent him from allegedly engaging in illicit trafficking of narcotic drugs and psychotropic substances. The petitioner argued that he had already been bailed out in two NDPS FIRs.
The Court, however, observed that the detaining authority was conscious of the grant of bail and had recorded satisfaction that there was a real possibility of the detenue indulging in illicit trafficking again. The High Court relied upon Supreme Court judgments including Haradhan Saha v. State of West Bengal, Kamarunnissa v. Union of India and Union of India v. Paul Manickam, reiterating that preventive detention is not punishment for a past act but a precautionary weapon to prevent future danger.
The Court further held that in preventive detention matters, judicial review is limited. The Court cannot substitute its own opinion for the subjective satisfaction of the detaining authority unless there is violation of procedural safeguards, mala fides, non-application of mind or absence of material.
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