The Jammu and Kashmir and Ladakh High Court have held that preventive detention orders may be issued even when a person is in police custody. The authority must, however, document strong justifications for doing so.
In the instant case titled Sakib Ahmad Sheroo v. UT OF J&K & Anr., the issue raised before the Jammu and Kashmir and Ladakh High Court was:
Whether detention, when the impugned order of detention was passed, valid as the accused was already in custody in connection with FIR for offenses under Sections 18, 20, and 38 of the ULA(P) Act?
With regard to the issue, the court held that it is trite that the preventive detention orders can be passed even when a person is in police custody or involved in a criminal case but for doing so, compelling reasons are to be recorded. The Detaining Authority is bound to record the compelling reasons as to why the detenue could not be deterred from indulging in subversive activities by resorting to normal law and in the absence of these reasons, the order of detention becomes unsustainable in law. It noted that nothing in the record even slightly suggests that the petitioner's detention by the detaining authority under the terms of the Jammu and Kashmir Public Safety Act was absolutely essential.
The detenue's right to access the documentation supporting the detention's grounds, including copies of the FIR, dossier, and witnesses' statements recorded under Section 161 CrPC, was limited.
It is pertinent to mention here that the petitioner has been booked in an offence falling under Chapter IV of the ULAP Act and in view of the provisions of Section 43-D of the said Act, the chances of the petitioner getting bail were very remote.
Thus, there were no compelling circumstances for the detaining authority to pass the impugned order of detention.
The court categorically held that:
“In the grounds of detention, after referring to the contents of the aforesaid FIR, it has been mentioned that these activities of the detenue are prejudicial to the security of the State and being highly motivated to carry on the illegal designs he is not likely to desist from indulging in antinational and anti-social activities. However, the Detaining Authority has not brought on record any other cogent material or furnished any other cogent ground to show that the detenue is not likely to desist from the aforesaid activities. It appears that the satisfaction of the Detention is solely based on the allegations made in the aforesaid FIR and no other material.”