Validity of a preventive detention order, is a fact specific issue

High Court of Jammu & Kashmir: A Single Judge Bench of Tashi Rabstan, J., dismissed a petition seeking quashing of a detention order passed by the Divisional Commissioner, Jammu.

The petitioner was a fruit seller against whom two FIRs were registered for offences punishable under Section(s) – 8/20 and 341/323/382 of the NDPS Act, 1985 for selling drugs.

The main issue before the High Court was whether a detention order can be quashed if the accused is a habitual offender.

The petitioner relied on Rekha v. State of TN, (2011) 4 SCC 260, wherein the order of detention was quashed by the Court because there was no requirement of such an order. However, the High Court refused to apply the principles of the said case on grounds that the present case differed in terms of facts and circumstances, and held that, the frequency or the number of acts should not be taken into account while deciding the validity of an order of detention; rather the gravity or the impact of the act should be considered by the Court. The Court further held that, the lab test results confirmed the substance recovered from the petitioner to be charas, and observed the petitioner’s actions to have been causing harm to the youth and public in general, since the petitioner being on bail, had went back to selling drugs, and hence, in light of these incorrigible acts, the order of detention was rightly passed. Accordingly, the detention order was upheld, confirming the detention for a period of 1 year. [Nisar Ahmed v. State of J&K, HCP No. 50/2017, decided on 16.07.2018]

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