High Court of Jammu and Kashmir and Ladakh Quashes Preventive Detention Order Based on Stale Incident

LI Network

Published on:18 July 2023 at 10:53 IST

Preventive detention cannot be based on stale incidents, ruled the High Court of Jammu and Kashmir and Ladakh as it quashed a preventive detention order in a recent case.

The court highlighted that the order was based on a two-year-old incident, which could not be considered a valid basis for preventive detention. The case, titled Shafayat Amin Shah Vs Union Territory of J&K and others, involved a detention order issued under the Unlawful Activities Prevention Act (UAPA).

The court raised concerns about the detaining authority’s lack of knowledge regarding the detainee’s arrest in the UAPA case.

It stated that the grounds of detention did not indicate whether the detainee had been arrested or applied for bail. Justice Sanjeev Kumar emphasized that a detention order must have a direct connection to the detainee’s activities, and a detention based on a stale incident is legally flawed.

Furthermore, the court stressed that the detention order would be invalidated if the detainee was not provided with the material used as the basis for the order. This denial of information hampers the detainee’s right to present an effective and meaningful representation against the detention.

The case before the court involved a writ petition challenging a preventive detention order issued in April 2022. The petition, filed by the detainee’s father, claimed that the relevant material had not been served to the detainee, depriving him of the opportunity to make a proper representation against the detention.

Acknowledging the validity of this claim, the court stated that simply informing the detainee of his right to representation is insufficient.

The material relied upon by the detaining authority was not provided to the detainee, preventing him from effectively challenging the detention.

The court further criticized the detaining authority for not providing any compelling reasons justifying the preventive detention.

It highlighted the importance of considering relevant material and applying a reasoned approach. The court concluded that the order of detention was vitiated due to the detaining authority’s failure to apply proper judgment.

Consequently, the High Court allowed the writ petition and quashed the detention order issued by the District Magistrate, Shopian. Advocate Molvi Aijaz represented the petitioner, while Government Advocate Sajad Ashraf appeared on behalf of the respondent authorities.

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