Non-Mention Of Bail Granted To Accused In FIR-Based Detention Order Renders Detention Illegal: J&K HC

It is definitely most refreshing, most reassuring and most rejuvenating to see that in the fitness of things while rising to the occasion in very rightly quashing a preventive detention order, the Jammu and Kashmir and Ladakh High Court at Srinagar in a most learned, laudable, landmark, logical and latest judgment titled Manzoor Ahmad Bhat Vs UT of J&K in HCP No.18/2023 and cited in 2024 LiveLaw (JKL) 165 that was reserved on 16.05.2024 and then finally pronounced on 30.05.2024 has minced just no words to declare most unambiguously that once an FIR is the core ground for passing a detention order, the non-mentioning of bail granted in relation to that FIR renders the detention order illegal. We need to note here that a Single Judge Bench comprising of Hon’ble Mr Justice Puneet Gupta based this key observation on a well settled proposition of law which postulates that the detaining authority is required to disclose all the relevant material in the detention order as it would reflect the subjective satisfaction of the detaining authority while passing the detention order. It must be also noted here that the Bench further also clearly underscored most unequivocally stating that, “No doubt, the subjective satisfaction of the detaining authority is not to be scrutinized by this court as a court of appeal but at the same time the court is not completely debarred from prima facie looking into the satisfaction of the detaining authority in the proceedings like the present one.” No denying it.

It is worth paying attention that the Jammu and Kashmir and Ladakh High Court made these observations in a case that involved Manzoor Ahmad Bhat who is a resident of Kashmir and who was detained by authorities under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPS Act) in July 2023. The detention order cited an FIR registered against Bhat but it did not mention that he had been granted bail in that case just weeks prior to the detention order. While citing the popular Supreme Court judgment in Sarabjeet Singh Mokha Vs District Magistrate Jabalpur. The High Court reiterated the fundamental right of a detenu to have their representation considered promptly. The High Court very rightly found the extended delay by the authorities in Bhat’s case to be a violation of this right. In light of these observations, we thus see that the Jammu and Kashmir and Ladakh High Court very rightly found it to be a no-brainer to rule most explicitly in favour of Bhat thus quashing the detention order and so also ordering his immediate release.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Puneet Gupta sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner-Manzoor Ahmad Bhat through his father has challenged the detention order No.DIVCOM-K/102/2023 dated 06.07.2023 issued by respondent No.2- Divisional Commissioner, Kashmir on the grounds; i) that the detention order has been passed by the authority without application of mind as the grounds mentioned in the detention order are vague and do not mention of the bail granted to the petitioner by the trial court in FIR No.54/2023 registered under Sections 8/20-29 of Narcotic Drugs and Psychotropic Substance Act, 1988; ii) that there was no cogent material before the authority to pass the impugned order; and iii) that the representation has been filed before the authorities but he has not been heard in the matter in person or through his counsel or friend.”

As we see, the Bench mentions in para 2 that, “The counter affidavit has been filed by the respondents wherein it is submitted that the respondent has passed the impugned order after complying with all the formalities as required by law; that the petitioner was influencing immature minds of young generation and making them habitual and addict; that the Advisory Board has confirmed the detention of the petitioner and subsequently the Government has also confirmed the detention of the petitioner. The grounds mentioned are not vague but precise ones. The counter affidavit refers to apprehending of the petitioner in FIR No.54/2023 under NDPS Act.”

Needless to say, the Bench states in para 3 that, “Heard learned counsel for the parties. Photo copy of the detention record is also produced by learned counsel for the respondents.”

To put things in perspective, the Bench envisages in para 4 that, “The impugned order has been passed by respondent No.2 against the petitioner in terms of Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (hereinafter to be referred as ‘PITNDPS’). The contention raised by learned counsel for the petitioner is that the grounds of detention speak of non-application of mind on the part of detaining authority as the same has been passed only on the basis of one FIR, in which, the petitioner has been bailed out. The petitioner was granted bail by the Court vide order dated 22.05.2023. However, there is no mention of the same in the detention order.”

Most rationally, the Bench quips and points out in para 6 that, “The detention order has been passed vide order dated 06.07.2023 and the bail has been granted by the Court on 22.05.2023 in FIR No.54/2023. Indeed the aforesaid FIR is mentioned in the detention order itself. However, the detention order does not speak of the granting of bail to the petitioner which was granted just sometime before passing of the detention order. It is not that the detention order is not passed on the basis of aforesaid FIR. The mention of the same in the detention order but not stating that the petitioner has been bailed out in the FIR cannot be ignored by this Court while analyzing the detention order. What prevented respondent No.2 from stating the afore stated fact that the bail has been granted to the petitioner by the Court is not made known to the court. The fact of bail having been granted was bound to be reflected in the detention order.”

It is worth noting that the Bench notes in para 7 that, “The argument of learned counsel for respondents that the non-mentioning of bail in the detention order is not fatal cannot be accepted. The Registration of FIR against the petitioner is the core ground for passing the detention order, therefore, the non-mentioning of the same in the detention order renders the detention order illegal.”

Most significantly and most fundamentally, the Bench underscores in para 8 mandating that, “It is trite proposition of law that the detaining authority is required to disclose all the relevant material in the detention order as it would reflect the subjective satisfaction of the detaining authority while passing the detention order. No doubt, the subjective satisfaction of the detaining authority is not to be scrutinized by this court as a court of appeal but at the same time the court is not completely debarred from prima facie looking into the satisfaction of the detaining authority in the proceedings like the present one. The detention order is required to be quashed on the aforesaid ground of non-mention of bail order.”

Be it noted, the Bench notes in para 11 that, “Another aspect of the matter is that though the representation has been considered by the authorities but the authorities have taken more than two months to dispose of the representation of the petitioner which by no means can said to be consideration and disposal of the representation within a reasonable time. Moreso, there is no explanation from the authorities as to why so much delay has happened in considering the representation. The representation has to be considered and decided by the authorities with all promptitude and in case there is a delay in disposal of the representation, the reasons must come forthwith from the concerned authorities.”

While citing here a very recent, relevant and remarkable case law, the Bench then hastens to add in para 12 stating succinctly that, “In “Sarabjeet Singh Mokha Vs. District Magistrate Jabalpur and others” reported in (2021) 20 SCC 98 the Hon’ble Supreme Court has reiterated that the representation, if made by the detenue, must be considered and decided without any delay as the delay in the disposal of representation deprives the detenue of his right to avail the remedy available to him. The judgment in Sarabjeet Singh Mokha’s case (supra) applies on all fours in the case in hand.”

Quite significantly, the Bench while taking here a very balanced, bold and brilliant stand minces just no words to clearly hold in para 13 that, “The preventive detention being not a criminal proceedings and is only with a view to prevent the petitioner from indulging in illegal activities, the safeguards provided in the Act have to be scrupulously followed by the authorities and any violation of the same will be illegality committed by the concerned authorities.”

Finally and as a corollary, the Bench then concludes by holding and directing in para 14 that, “In view of the discussion made above, the petition is allowed and the impugned detention order No. DIVCOM-K/102/2023 dated 06.07.2023 passed by respondent No.2 stands quashed. The petitioner namely Manzoor Ahmad Bhat shall stand released from custody if not required in any other case.”

In a nutshell, we thus see that the Jammu and Kashmir and Ladakh High Court at Srinagar has been most forthright in holding precisely that non-mention of bail granted to the accused in FIR-based detention order renders detention illegal. We thus see that the petitioner is rightly ordered by the High Court to be released from custody as mentioned hereinabove. It thus certainly merits no reiteration of any kind that all the courts in India must in similar such cases definitely rule accordingly as has been ruled in this leading case! No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.