In a landmark ruling, the Jammu and Kashmir High Court has affirmed the authority of constitutional courts to order the release of detainees, even under the stringent provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (PITNDPS). This pivotal decision emerged from the case of Jahangeer Ahmad Mugloo v. UT of Jammu and Kashmir, where Justice Rahul Bharti presided.
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The court’s order, issued on November 4, clearly states,
“The rigor of section 13 sub-section 7 (which deals with restrictions on the grant of bail) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 will not come in the way of a constitutional court exercising jurisdiction under Article 226 of the Constitution of India to direct the release of a detenue.”
This statement underscores the court’s stance on the matter.
The context of this ruling involved Jahangeer Ahmad Mugloo, who sought temporary release from preventive detention to attend religious rituals with his family following his brother’s death on November 3. The High Court, drawing upon the Supreme Court’s decision in Sunil Fulchand Shah v. Union and Ors., justified its decision. In the Sunil Fulchand Shah case, the Supreme Court had noted that a Constitutional court has the power under Article 226 to order the temporary release of a person in preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).
Following this precedent, the High Court granted Mugloo’s application, allowing his release for a five-day period. However, the court imposed a condition that during this release, Mugloo would not be permitted to leave his village without the permission of the Station House Officer.
This ruling by the Jammu and Kashmir High Court marks a significant moment in the judicial landscape, reinforcing the power of constitutional courts to intervene in matters of preventive detention, even under stringent laws like the PITNDPS Act. The decision not only addresses the specific case of Jahangeer Ahmad Mugloo but also sets a precedent for future cases where the balance between legal provisions and constitutional rights is at stake.
