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Preventive Detention After Conviction on Same Criminal Cases ‘Literally Amounts to Double Jeopardy’: J&K High Court

Jammu// The High Court of Jammu & Kashmir and Ladakh recently observed that detaining a person under the PSA on the basis of the same criminal cases for which he has already been convicted “literally amounts to double jeopardy.”

Justice Rahul Bharti made the observation while quashing a preventive detention order passed under the PSA in a case involving allegations of bovine smuggling and related criminal offences.

The Court observed:

“Conviction of a person for a crime committed means that a person has suffered the consequences in law. By reference to the same set of criminal cases, if a person is to be exposed to suffer a preventive detention custody, then it literally amounts to double jeopardy… In both situations, the petitioner is finding himself confined in a prison.”

The Court noted that the detenue had already been convicted in three criminal cases, while another case was pending trial. It held that once a person has undergone the ordinary criminal process and suffered the legal consequences, the very same criminal cases cannot ordinarily be relied upon to justify preventive detention.

Justice Bharti further reiterated that the detaining authority must maintain the well-established distinction between “law and order” and “public order.”

The Court observed that even if a person is a repeat offender, preventive detention cannot be invoked unless the alleged activities genuinely threaten public order and not merely law and order.

The detention had been ordered by the District Magistrate, Udhampur, on the basis of a police dossier alleging involvement in multiple cases under the Prevention of Cruelty to Animals Act and related offences. The authorities had also alleged that the activities were likely to disturb communal harmony.

However, after examining the detention record, the High Court held that the material placed before the detaining authority did not establish any real threat to public order.

Holding the preventive detention to be misconceived and unjustified, the Court quashed the detention order along with all subsequent approval, confirmation and extension orders, and directed the authorities to release the detenue forthwith, if not required in any other case.

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