Jammu & Kashmir High Court - Srinagar Bench
Shahid Manzoor Dar vs Union Territory Of J&K & Others Through on 14 January, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No.41/2024
Reserved on:19.12.2024
Pronounced on: 14.01.2025
Shahid Manzoor Dar, Aged 22 years
S/o Manzoor Ahmad Dar
R/o Mohalla Mir Sahib District Baramulla,
through his Brother Faisal Manzoor Dar S/o
Manzoor Ahmad Dar; R/o Mohalla Mir
Sahib, Distrct Baramulla
....Petitioners
Through:
Mr. Mohammad Rafiq Bhat, Advocate
Vs.
1. Union Territory of J&K & Others through
Commissioner Secretary to Government,
Home Department J&K, Government, Civil
Secretariat, Srinagar.
2. Divisional Commissioner, Kashmir,
Srinagar.
Through:
Mr. Hakim Aman Ali, Dy.AG.
....Respondents
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE.
JUDGMENT
1. The detenue through his brother has filed the instant petition to challenge the order No. DIVCOM-K/04/2024 dated 27.01.2024, for short impugned order, in terms whereof the detenue Shahid Manzoor Dar S/o Manzoor Ahmad Dar R/o Mohalla Mir Sahib District Baramulla has been detained by respondent No. 2 under preventive detention in terms of the provisions of „Prevention of Illicit Traffic in Narcotic Drugs and WP(Crl) No.41/2024 Page 1 of 9 Psychotropic Substances Act, 1988‟ on variety of grounds taken in the memo of the petition.
2. Upon notice,; the respondents have appeared and filed their counter affidavit resisting the claim of the petitioner.
Brief Facts:
3. The detenue, a resident of Baramulla, is stated to have been arrested by Police Station Baramulla in connection with FIR No. 168/2023 for the commission of offences punishable in terms of Sections 8/21,29 NDPS Act on 23.08.2023, wherein he was admitted to bail by the competent court of jurisdiction. The detenue has subsequently been detained under the provisions of „Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988‟ on account of his involvement in the above said FIR.
4. The detenue is stated to have been an active, notorious and illicit drug peddler having worked as a member of the drug trafficking network to lure the youth of the area towards the drug menace. The detenue was accordingly booked in case FIR No. 168/2023 registered in Police Station Baramulla for the commission of offences punishable in terms of section 8/21,29 NDPS Act. However, the detenue continued his activities without any remorse and was thus detained under the provisions of the „Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988‟ by the impugned order.
5. The petitioner has challenged the impugned order inter-alia on the grounds that the order is violative of the fundamental rights and statutory procedural safeguards of the detenue; is vague, irrelevant, non-existent and lacks specific character; the order suffers from non-application of mind; it does not specify as to how the ordinary criminal law could not have been effective against the detenue; it does not specify the compelling reasons for invoking the preventive laws against the detenue; the grounds of detention and other requisite material were proclaimed in a hyper technical language i.e. English and the detenue failed to understand the same and resultantly the detenue was not able to file a representation against his detention; the impugned order has been issued WP(Crl) No.41/2024 Page 2 of 9 in disregard of the fact that the detenue had been bailed out for his alleged involvement in a substantive non-bailable offence.
6. Per contra the respondents in their counter affidavit have, while refuting the allegations of the petitioner, stated that the detenue is involved in case FIR No. 168/2023 of police station Baramulla for the commission of offences punishable under section 8/21,29 NDPS Act. The detenue had developed contacts with drug peddlers who were dealing in and selling the drugs among the youth of the area which had an adverse effect on the younger generation and the national economy. The detenue was detained under preventive detention to prevent him from continuing with the trade and to spoil the young generation of the Union Territory.
7. Heard learned counsel for the parties and perused the material on record.
8. Learned counsel for the petitioner has laid emphasis only on two grounds viz; the non-application of mind on the part of the detaining authority and the non-supply of material to the detenue thereby preventing him from making a representation against his detention.
9. It appears from the perusal of the record that the detenue was involved in case FIR No. 168/2023 of Police Station Baramulla wherein he has been bailed out by the Court of 1st Additional Session Judge, Baramulla on 20.09.2023. It also does not come to fore as to whether the detenue after having been bailed out has again been involved in the alleged drug peddling activities which would provide respondents reason to resort to the preventive measures in addition to the commencement of the substantive criminal proceedings against the detenue. All this goes on to show that the learned counsel for the petitioner is quite justified in submitting that there is non-application of mind on the part of detaining authority to detain the detenue for his involvement in case FIR No. 168/2023 of Police Station Baramulla.
10. The contention of the learned counsel for the petitioner that the detenue has not been provided the entire material thereby depriving him to move a representation against his detention cannot be accepted as the respondents have sufficiently shown by the records that the detenue was WP(Crl) No.41/2024 Page 3 of 9 furnished the documents containing as many as 18 leaves. However, this Court does not have any reason to dispute the contention of the petitioner that the representation moved by the detenue, as is indicated by the receipt dated 6th March, 2024 placed on record, against his detention was not considered as the respondents have only stated that no representation was moved by the detenue,but nothing has been said with respect to the receipt of representation placed on record by the petitioner.
11.The Supreme Court in case titled "Mohinuddin Alias Moin Master Vs. District Magistrate Beed and Others" reported as (1987) 4 SCC 58, has held that failure on the part of the State Government to consider the representation made by the detenue renders the detention of the detenue invalid and continuation of detention, in such situation, is constitutionally impermissible.
12. The Supreme Court in its latest pronouncement in case titled "Jaseela Shaji vs. Union of India" reported as (2024) 9 SCC 53, while referring to certain earlier decisions of the Court, has held that even if the consideration to the representation of the detenue is delayed, not to speak of non-consideration of the representation, the same is fatal for the detention order. It would be profitable to reproduce paragraphs 56 and 59 of the said judgment herein:
"56. In the case of Rattan Singh vs. State of Punjab and others (supra), this Court found that the representation of the detenu made to the State Government was decided expeditiously. However, insofar as the said representation made to the Central Government is concerned, either it was not forwarded or someone tripped somewhere. The inevitable result was that the detenu was deprived of a valuable right to defend and assert his fundamental right to personal liberty. Chief Justice Y.V. Chandrachud, speaking for the Bench, observed thus:
"4. There is no difficulty insofar as the representation to the Government of Punjab is concerned. But the unfortunate lapse on the part of the authorities is that they overlooked totally the representation made by the detenu to the Central Government. The representations to the State Government and the Central Government were made by the detenu simultaneously through the Jail Superintendent. The Superintendent should either have forwarded the representations separately to the Governments concerned or else he should have forwarded them to the State WP(Crl) No.41/2024 Page 4 of 9 Government with a request for the onward transmission of the other representation to the Central Government. Someone tripped somewhere and the representation addressed to the Central Government was apparently never forwarded to it, with the inevitable result that the detenu has been unaccountably deprived of a valuable right to defend and assert his fundamental right to personal liberty. Maybe that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus. Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu's representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention of the detenu must therefore be held illegal and the detenu set free.
5. In Tara Chand v. State of Rajasthan [(1980) 2 SCC 321 : 1980 SCC (Cri) 441] it was held by this Court that even an inordinate delay on the part of the Central Government in consideration of the representation of a detenu would be in violation of Article 22(5) of the Constitution, thereby rendering the detention unconstitutional. In Shyam Ambalal Siroya v. Union of India this Court held that when a properly addressed representation is made by the detenu to the Central Government for revocation of the order of detention, a statutory duty is cast upon the Central Government under Section 11, COFEPOSA to apply its mind and either revoke the order of detention or dismiss the petition and that a petition for revocation of an order of detention should be disposed of with reasonable expedition. Since the representation was left unattended for four months, the continued detention of the detenu was held illegal. In our case, the representation to the Central Government was not forwarded to it at all."
59. In the case of Aslam Ahmed Zahire Ahmed Shaik vs. Union of India and others (supra), this Court was again considering a similar factual scenario. The detenu had handed over the representation to the Superintendent of Central Prison on 16th June 1988, who callously ignored it and left the same unattended for a period of seven days and forwarded the same to the Government on 22nd June 1988. This Court surveyed the earlier decisions and observed thus:
WP(Crl) No.41/2024 Page 5 of 9"5. This Court in Sk. Abdul Karim v. State of W.B. [(1969) 1 SCC 433] held: (SCC p. 439, para
8) "The right of representation under Article 22(5) is a valuable constitutional right and is not a mere formality."
6. This view was reiterated in Rashid Sk. v. State of W.B. [(1973) 3 SCC 476 : 1973 SCC (Cri) 376] while dealing with the constitutional requirement of expeditious consideration of the petitioner's representation by the Government as spelt out from Article 22(5) of the Constitution observing thus: (SCC p. 478, para 4) „4. The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty -- the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion."
7. It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be disposed of with reasonable expedition but it must necessarily depend on the facts and circumstances of each case. The expression "reasonable expedition" is explained in Sabir Ahmed v. Union of India [(1980) 3 SCC 295 :
„12. What is „reasonable expedition‟ is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable red- tapism and unduly protracted procrastination."
8. See also Vijay Kumar v. State of J&K [(1982) 2 SCC 43 : 1982 SCC (Cri) 348] and Raisuddin v. State of U.P. [(1983) 4 SCC 537 : 1984 SCC (Cri) 16] .
9. Thus when it is emphasised and re-emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as WP(Crl) No.41/2024 Page 6 of 9 having infringed the mandate of Article 22(5) of the Constitution.
10. A contention similar to one pressed before us was examined by this Court in Vijay Kumar case wherein the facts were that the representation of the detenu therein dated 29-7-1981 was forwarded to Government by the Superintendent of Jail on the same day by post followed by a wireless message, but according to the Government, the representation was not received by them. Thereafter, a duplicate copy was sent by the Jail Superintendent on being requested and the same was received by the Government on 12-8-1981. Considering the time lag of 14 days in the given circumstances of that case, this Court though overlooked the same and allowed the writ petition on the subsequent time lag, made the following observation: (SCC pp. 49-50, para 12) „12 The jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earliest opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. If the Government enacts a law like the present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to make his representation against his detention, to the Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order.‟
11. Reverting to the instant case, we hold that the above observation in Vijay Kumar case will squarely be applicable to the facts herein.
Indisputably the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on 16-6-1988 for mere onward transmission to the Central Government has callously ignored and kept it in cold storage unattended for a period of seven days, and as a result of that, the representation reached the Government eleven days after it was handed over to WP(Crl) No.41/2024 Page 7 of 9 the Jail Superintendent. Why the representation was retained by the Jail Superintendent has not at all been explained in spite of the fact that this Court has permitted the respondent to explain the delay in this appeal, if not before the High Court.
12. In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the Government which received the representation eleven days after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible."
13. This Court has also consistently been holding that the consideration of representation is a valuable guaranteed right of the detenue enshrined in the constitution and its violation is fatal for the detention order. Reference in this connection is made to a case titled "Aijaz Ahmad Sofi v. UT of J&K and Another" bearing WP(Crl) No. 479/2022 decided on 26.08.2022.
14.In view of the ratio laid down in the judgments supra, the Supreme Court as also this Court have laid much emphasis on the fundamental right of the detenue as envisaged in Section 22 (5) of the Constitution. The Supreme Court has come down heavily on the respondents for taking considerable amount of time in deciding the representation of the detenue holding that such inaction prejudices the detenue and violates his guaranteed right. The instant case is on a higher pedestal of violation as the respondents have not decided the representation of the detenue at all, not to speak of a delayed dispatch. In that view of the matter, the gravity of the inaction in the instant case is much higher certainly amounting to prejudicing the rights of the detenue with impunity.
15.For all what has been said hereinbefore, the Court is of the considered view that the safeguards provided by the statute have not been complied with in the instant case and the detenue resultantly has been deprived of his right to seek consideration of his representation.
WP(Crl) No.41/2024 Page 8 of 916.The impugned order bearing order No. DIVCOM-K/04/2024 dated 27.01.2024, in terms whereof the detenue Shahid Manzoor Dar S/o Manzoor Ahmad Dar R/o Mohalla Mir Sahib District Baramulla has been detained is quashed and the detenu is directed to be released from the preventive custody forthwith, if not required in any other case.
17.Disposed of.
18.The detention record be returned to Mr. H. Aman Ali, Dy.AG against receipt.
(MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR:
14.01.2025 "Shaista-PS"
Whether the judgment is reportable: Yes/No. Whether the judgment is speaking: Yes Sanjeev Kumar 2025.01.14 16:02 WP(Crl) No.41/2024 I attest to the accuracy and Page 9 of 9 integrity of this document