According to a recent decision by the High Court of J&K and Ladakh, an individual should not be placed under preventive custody just because it is thought that they will likely be granted bail [Muyeeb Shafi Ganie v. Union Territory of J&K and Anr].
In a case filed at the Soura police station on August 19, 2020, Justice Vinod Chatterji Koul made this observation while releasing the petitioner-detenu, against whom an order had been issued by the District Magistrate in Srinagar following their bailout.
“If detaining authority is apprehensive that in case detenu is released on bail he may again carry on his criminal activities, then in such a situation, the authority should oppose the bail application and, in the event, bail is granted, the authority should challenge such a bail order in the higher forum and that merely on the ground that an accused in detention is likely to get bail, an order of preventive detention should not ordinarily be passed,” single-judge Justice Vinod Chatterji Koul said.
The petitioner, Muyeeb Shafi Ganie, was presenting a plea to the court contesting his preventative detention.
Soon after he was granted bail in the FIR against him, Ganie was placed under preventive detention to stop him from acting in any way detrimental to the state’s ability to maintain security.
Ganie contested the preventative detention order on the grounds that the detaining authority had not provided the documentation, such as the dossier, that it had used to support its decision.
This had prohibited him from making an effective case against the detention order, it was alleged.
His attorney contended that the detaining authority considered the FIR against Ganie when granting the order, disregarding the fact that Ganie had already been bailed out of the aforementioned FIR and that no more allegations were made against him.
The High Court determined that the defendant’s submission was valid.
It stated that until the information supporting the detention order is provided to the detenu, it is unreasonable to expect him to meaningfully exercise the constitutional and statutory rights guaranteed by Article 22(5) of the Indian Constitution and Section 13 of the J&K Public Safety Act of 1978.
As a result, the High Court overturned the District Magistrate’s detention decision against the petitioner-detenu.
Attorney Wajid Haseeb made an appearance on the petitioner’s behalf.
Sajad Ashraf, the government advocate, spoke on behalf of Jammu and Kashmir, a union territory.
Read Judgement:
