A division bench of the Jammu & Kashmir and Ladakh High Court recently dealt with a case of Preventive Detention. It held that the requirement of Section 76 of the Criminal Procedure Code (CrPC) does not apply to Preventive Detention. The court further explained that detention under the Public Safety Act is not an arrest for any penal offence, but it is a preventive measure to avert any potentially harmful act that the detained person might commit based on their antecedents. Therefore, producing such a detenue before a magistrate within 24 hours is not necessary.

The court emphasized that the purpose of invoking the law of preventive detention is not to punish someone for an alleged illegal act but to prevent them from engaging in any act that could harm the security of the state or public order, as stated in the Jammu & Kashmir Public Safety Act of 1978. If the subjective satisfaction is based on past conduct and relevant materials, then detaining such a person is permissible.

The court also clarified that the fact that the person is already in custody for some offence is not a hindrance for the detaining authority to detain them under the Preventive Detention law if the authority is convinced that there is a chance of the detenue being released on bail. Such satisfaction is subjective and is not normally subject to court interference.