[Preventive Detention] Courts Should Respect Subjective Satisfaction Of Detaining Authority To Release Accused On Bail If Backed By Cogent Material: J&K High Court

The court stressed that this immunity applies only when the said subjective satisfaction is based on strong and cogent material.

The observations came from Chief Justice N. Kotiswar Singh & Justice Mohammad Yousuf Wani while hearing an appeal moved by the detenue Jahangir Ahmad Wani assailing the single bench judgment in terms of which his plea for quashing his detention order had been dismissed.

Questioning the writ courts judgemnt the appellant argued that the detention order lacked legal clarity, depriving him of the right to effective representation. Moreover, Advocate GN Shaheen for Wani contended that since he was already in judicial custody and had not applied for bail, the apprehension of his potential release on bail lacked factual basis.

Responding to these arguments, the State, represented by Mr. Zahid Ahmad Noor, defended the detention order, emphasizing the specific instances mentioned in the grounds of detention. The State highlighted Wani's alleged association with militants of Jaish-e-Mohammad and his involvement in aiding criminal activities. Furthermore, the State contended that the apprehension of Wani's potential release on bail was a subjective satisfaction of the detaining authority and not subject to judicial review.

After meticulously examining each contention presented by both parties the bench acknowledged the importance of the detenue's right to effective representation and went on to scrutinise whether Wani had indeed submitted any representation and if the materials provided were sufficient for him to do so effectively.

The court noted,

“In the present case, it is seen from the records that the detenue never submitted any representation to any of the authorities. If he has not submitted any representation, how can it be said that he could not submit any representation which was effective”.

In order to further clarify the legal position on the matter the bench referenced R. Keshava v. M.B. Prakash 2001 & Veeramani v. State of T.N., (1994) and observed,

“If the detenue does not submit any representation to the competent authority, no fault could be found with the authorities as there is no obligation of the authorities to remind him to file any representation”.

In the context of the apprehension regarding bail, the court cited the Supreme Court's decision in Union of India and another vs. Dimple Happy Dhakad 2019, affirming that while subjective satisfaction of the authority is beyond judicial review, it must be based on cogent material. The Court found no such material supporting the apprehension of Wani's potential release on bail, ultimately ruling in his favor on this ground.

“..as regards the other apprehension that he may obtain bail from the court, on examination of the records, we did not find any material to support such an inference and apprehension. It is not denied by the respondent that the detenue had not filed any application for bail. If no such application for bail had been filed, how one can draw the inference that he may succeed in obtaining bail from the court”.

Differentiating Dimple Happy Dhakad case with the case at hand the court said in the former case the Apex Court had found certain materials because of which it had declined to interfere with the detention order of the detenue who was already in detention based on the n the subjective satisfaction which was based on certain materials and recorded,

“In the present case, while shuffling through the pages of the records, nothing has come to our notice that there was any such instance of others who were similarly situated, were granted bail which would make the authorities apprehend that the petitioner may succeed in obtaining bail, even though he had not yet filed any bail application. Thus, unfortunately, as discussed above, we do not find any such material on records as in the case of Dimple Happy Dhakad (supra) which led the detaining authority to apprehension that the detenue may be released on bail”.

In alignment with these findings, the bench allowed the appeal and the impugned detention order passed by District Magistrate Pulwama was set aside

Case Title: Jahangir Ahmad Wani Vs UT Of J&K

Citation: 2024 LiveLaw (JKL) 98

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