Ordinarily There Should Be No Preventive Detention Of Person Already In Custody:HC

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SRINAGAR — Ordinarily preventive detention of a person, already in custody of the state agencies in connection with commission of offence under substantive law allegedly committed by him, should not be ordered. 

“Legal position in regard to preventive detention of a person, who is already in custody of the State Agencies in connection with commission of offence under substantive law allegedly committed by him is well settled. Normally, preventive detention of such a person should not be ordered,” a bench of Justice Janak Raj Kotwal said while allowing a petition filed by one Aijaz Ahmad Shah of BAramulla against detention order under Public Safety Act, the preventive detention legislation described as lawless law by the Amnesty Interregional. “Nonetheless, preventive detention of such a person can still be ordered, if the detaining authority has compelling reasons to believe that he is likely to be released in the substantive offence either on bail or due to his acquittal or discharge,” the court said.

Referring to Supreme Court judgment In Binod Singh’s case the court said that it was held: “if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised.

In Surya Prakash Sharma’s case, the high court said that Apex Court said: “…an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention: and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. 

“The expression “compelling reasons” in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.”

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