LI Network
Published on: November 16, 2023 at 15:50 IST
The Jammu and Kashmir High Court has ruled that constitutional courts can utilize powers under Article 226 of the Constitution of India to order the release of a detainee, overriding the stringent provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (PITNDPS). This significant decision was made in the case of Jahangeer Ahmad Mugloo v. UT of Jammu and Kashmir.
Justice Rahul Bharti delivered the observation while directing the release of an individual detained under the PITNDPS Act for a five-day period to participate in religious rituals with his family following his brother’s demise.
The court’s order, issued on November 4, stated, “The rigor of section 13 sub-section 7 (which deals with restrictions on the grant of bail) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 will not come in the way of a constitutional court exercising jurisdiction under Article 226 of the Constitution of India to direct the release of a detenue.”
The High Court addressed an application by Jahangeer Ahmad Mugloo, who sought temporary release from preventive detention to be with his family after his brother’s death on November 3.
Citing the Supreme Court’s decision in Sunil Fulchand Shah v. Union and Ors., the High Court justified its decision. In the Sunil Fulchand Shah case, the Supreme Court had emphasized that a Constitutional court has the authority under Article 226 to order the temporary release of a person in preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).
Based on this precedent, the High Court granted the application filed by the detainee, directing release for a five-day period. However, the court imposed the condition that during this release period, the detainee would not be allowed to leave his village without the permission of the Station House Officer.
