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Jammu & Kashmir High Court - Srinagar Bench

Khaleeq Ahmad Sheikh vs State Of J&K; & Others on 6 February, 2019

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

            HIGH COURT OF JAMMU AND KASHMIR
                      AT SRINAGAR
                            ...

HCFP no.278/2018 Date of order: 06.02.2019 Khaleeq Ahmad Sheikh v.

State of J&K and others Coram:

Hon'ble Mr Justice Sanjeev Kumar, Judge Appearing Counsel:

For Petitioner(s): Mr S.T. Hussain, Senior Advocate with Ms Nida Nazir, Advocate For Respondent(s): Mr Asif Ahmad Bhat, AAG Whether approved for reporting? Yes

1. The preventive detention of the detenu, ordered by the respondent no.2 (Divisional Commissioner, Kashmir) in exercise of the powers vested in him under Section 3 of the J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity "PITNDPS"), is the subject matter of challenge in this petition for habeas corpus. Before taking note of the grounds of challenge taken in this petition to assail the impugned order, it would be appropriate to give brief resume of the activities of the petitioner, which have led him to preventive detention. As is born out from the grounds of detention served on the detenu, he is a habitual indulgent in the trade of narcotics and psychotropic substances. On 22 nd January 2017, the detenu along with his associate was apprehended by a police party of police post Taad at Dalair post opposite Chatkadi. During search, brown sugar (Heroin) weighing 01 kilogram was recovered from his possession. In the result, FIR no.04/2017 under Section 8/20 NDPS Act, was registered in the police station Karnah against the detenu. Although it is not coming HCP no.278/2018 Page 1 of 14 out from the grounds of detention as to what happened in the aforesaid FIR and how the detenu came out of the police custody, yet on 25th June 2018, he was once again apprehended and was found to be in possession of 140 grams of Heroin. Another FIR, being FIR no.37/2018 under Section 8/21 NDPS Act, came to be registered in police station Karnah. The detaining authority after arriving at a satisfaction that the detenu is an incorrigible drug peddler, operating in an organised and well-planned manner and thereby posing serious threat to the life and health of the people, particularly younger generation and with a view to prevent the detenu from further committing the offence(s) under NDPS Act, passed the order of detention bearing no.DIVCOM-"K"/67/2018 dated 4th August 2018, impugned in this petition.

2. The order of detention is assailed primarily on the following points:

(I) That the order of detention is without jurisdiction inasmuch as the detaining authority, i.e. Divisional Commissioner, Kashmir, has not been specially empowered by the State Government to pass the order of detentions under Section 3 of PITNDPS;

(II) That the detenu has only been given the option to make a representation against the order of detention, but has not been informed his right to do so;

(III) That the grounds of detention along with the relevant documents relied upon have not been supplied to the detenu nor officer executing the warrant of detention has filed his personal affidavit;

(IV) That since the detenu was booked in two FIRs for commission of offences under NDPS Act, as such, the normal substantive law of the land would have taken care HCP no.278/2018 Page 2 of 14 of him and that there is no specific material taken note of by the detaining authority to come to the conclusion that the detenu despite being booked in substantive law, would still indulge in smuggling activities;

(V) That the translated copies of the documents in the language understood by the detenu were not given which has affected the right of the detenu;

(VI) That the failure on the part of the detaining authority to fix the period of detention vitiates the order of detention impugned;

(VII) That there is lack of application of mind on the part of the detaining authority who has simply copy pasted the dossier of the sponsoring authority in the grounds of detention.

3. I have heard the learned counsel for the parties and perused the record.

4. Mr S. T. Hussain, learned senior Advocate appearing for the petitioner, has extensively argued on all the points raised by him. Mr Asif A. Bhat, learned AAG was also heard.

In re: Point no.I:

5. The learned senior counsel appearing for the petitioner, while elaborating his arguments on Point no.I, submits that the detaining authority, i.e. Divisional Commissioner, Kashmir, is not a person specially authorised by the State Government to pass the detention orders under PITNDPS. He tries to draw distinction between a general authorisation and special authorisation. He emphasises that what is required in terms of Section 3 is special authorisation issued in favour of the detaining authority by the State.

6. Per contra, the learned counsel for the State submits that there is a specific authorisation issued by the Government in favour of the Divisional Commissioners, Jammu/Srinagar, for issuing the detention orders under PITNDPS. He invites attention of this Court to SRO 247 of 1988, issued by the Government on 27th July 1988.

7. Upon consideration of the rival contentions and going through the record of the detention, which contains a copy of SRO 247 of 1988 dated 27th July 1988, issued by the State Government, this Court does not find any merit in the submission made by the learned senior counsel for the petitioner. As per Section 3 of PITNDPS, the detention order can be passed by the Government or any officer of the Government not below the rank of Secretary to Government, specially empowered for the purposes of the Section 3, by the Government. The Government in exercise of powers vested in it under Section 3(1) of PITNDPS, has issued SRO 247 of 1988, which for facility of reference is reproduced hereunder:

"Notification, Srinagar, the 27th of July, 1988.

SRO 247.-- In exercise of the powers conferred by Sub-section (1) of Section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988 (Ordinance No.1 of 1988), the Government hereby specially empower Divisional Commissioner Jammu/Srinagar also for purposes of the said section.

By order of the Government of Jammu & Kashmir."

8. From bare reading of SRO, it is clear that the Divisional Commissioner, Jammu, and Divisional Commissioner, Srinagar, have been specially empowered for the purposes of the Section 3 of PITNDPS. The plea of the learned senior counsel for the petitioner that the general authorisation given to the Divisional Commissioners under the J&K Public Safety Act, 1978, is not enough and is not compliance of Section 3, is totally misconceived. The Divisional HCP no.278/2018 Page 4 of 14 Commissioner, Kashmir, has been specially authorised as is evident from the aforesaid SRO In re: Point no.II:

9. It is contended by the learned senior counsel for the petitioner that though the detenu was asked to make a representation against order of detention, yet he was not informed that he has a Constitutional right to do so and this fact alone vitiates the order of detention. With a view to appreciate the contention of the learned senior counsel for the petitioner, I have gone through the original record of detention. It is true that the detaining authority while communicating the detenu with regard to his detention on the grounds specified in the grounds of detention, also informed the detenu that he may make a representation against the order of detention either to the detaining authority or to the Government if he so desired. He was also informed that he could intimate/inform the Home Department if he would like to be heard in person by the Advisory Board. Later on, while acknowledging the receipt of the order of detention, the grounds of detention and other material relied upon in the grounds of detention, the detenu has noted that he has been informed "about his right" that he can make a representation to the Government/ detaining authority against his detention order. In the face of the material on the record, it is very difficult to appreciate the contention of the learned senior counsel for the petitioner. Not only the detenu has been asked to exercise his right to make a representation before the detaining authority or the Government, but he has also been made aware of his right to seek personal interview before the Advisory Board. The detenu, as noted above, has while acknowledging the receipt of the relevant material from the HCP no.278/2018 Page 5 of 14 executing officer has categorically stated that he has been informed of his right to make a representation to the Government/detaining authority if he so desires. In that view of the matter, I do not find any substance in the submissions made by the learned senior counsel for the petitioner.

In re: Point no.III:

10.The contention of the learned senior counsel for the petitioner is that the detenu has not been served with the grounds of detention and the material relied thereupon, is belied by the original record of detention placed before me by the learned counsel for the respondents. From the perusal of the record and the acknowledgement of the receipt of the material signed by the detenu, he has been served with the order of detention, grounds of detention, notice regarding detention, dossier of activities, attested copies of FIRs bearing no.04/2017 and 37/2018, attested copy of seizure memos/recovery memos, attested copy of site plan, arrest memo, docket with regard to registration of case FIR no.37/2018 P/S Karnarh, attested copies of statement of witnesses in case FIR no.37/2018 P/S Karnah. In as many as 34 leaves have been made available to the detenu, so as to enable him to make an effective representation. It may also be noteworthy that despite having been supplied all the relevant material, the detenu has chosen not to make any representation to the detaining authority or the Government, nor he has sought any personal interview with the Advisory Board. The contention of the learned senior counsel for the petitioner is that the stand of the State that the whole material relied upon in the grounds of detention has been served upon the detenu, cannot be accepted in absence of the personal affidavit of the executing officer, who claims HCP no.278/2018 Page 6 of 14 to have delivered all these documents. I am not impressed with the submission made by the learned senior counsel for the petitioner in view of the abundance of the relevant material available in the detention record produced by the respondents. It is not the case of the petitioner that due to non-availability of the relevant material, the detenu was disabled to make an effective representation. This is more so when the detenu has chosen not to avail of right to make a representation to the detaining authority or the Government.

In re: Poiint no.IV:

11.While elaborating his submissions on the Point, the learned senior counsel has straightway placed reliance on paragraph 30 of the judgement of the Supreme Court rendered in the case of Rekha v. State of Tamil Nadu (2011) 5 SCC 244. What was observed by Three Judge Bench in paragraph 30 of the judgement needs to be noticed:

"Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is:

Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."

12.Per contra, the learned counsel appearing for the respondents has stated that the aforesaid judgement rendered in the case of Rekha (supra) is distinguishable on facts. He has, instead, placed strong reliance upon the Constitution Bench judgement of the Supreme Court in the case of Haradhan Saha v. State of W.B. (1975) 3 SCC

198.

13.I have carefully analysed the rival contentions of the learned counsel for the parties and law laid down in the aforesaid two judgements.

At the first blush it appears as if the Hon'ble Supreme Court has taken contradictory positions on the issue, but on careful perusal it is clear that the judgement in the case of Rekha (supra) has been rendered in its own facts and the law continues to be the one authoritatively laid down in the Constitution Bench of the Supreme Court in Haradhan Saha's case (supra). Paragraphs 32 and 33 of the judgement rendered in the case of Haradhan Saha (supra) is reproduced with advantage:

"32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu."

14.In the instant case, it may be noted, that the detenu is a habitual and incorrigible offender and is a part of an organised and well-planned drug mafia. Though he has been active in the trade for last several years, but was apprehended for the first time on 22nd January 2017 with cache of one-kilogram brown sugar (Heroin) which is worth lakhs of rupees in the international market. Though the FIR was registered in the police station Karnah under Section 8/20 NDPS Act, but he was granted bail by the competent court of jurisdiction. The mere fact that despite having extremely the serious allegations and recovery of one kilogram of Heroin, the detenu has succeeded HCP no.278/2018 Page 8 of 14 in hoodwinking the substantive law itself speaks volumes about the necessity to keep such a person under preventive detention so that he is prevented from indulging in such activities. The detenu is such a compulsive offender that his earlier arrest by the police did not deter him from continuing with his activities. A year after he was once again apprehended by the police and 140 grams of Heroin was recovered from his possession. Anticipating that he would get bail once again if he moves the competent court. In such circumstances, I do not find anything wrong with the satisfaction arrived at by the detaining authority that normal law of the land, i.e. provisions of NDPS Act, would not be sufficient to deter the detenu from rebuilding his activities. It is in this context that the law laid down by the three Judge Bench in the case of Rekha (supra) needs to be appreciated. In the context, the decision rendered in Haradhan Saha (supra), which is a Constitution Bench judgement would govern the field. For these reasons, I do not find any merit in the contention raised by the learned senior counsel or the petitioner.

In re: Point no.V:

15.The contention of the learned senior counsel for the petitioner that the failure on the part of the detaining authority to provide the translated copies of the documents relied upon in the grounds of detention vitiates the detention, is too specious to be accepted. The detenu is read up to 7th, is an admitted fact. The documents relied upon in the grounds of detention are in Urdu. That apart, the grounds of detention have been well explained to the detenu in the language he understood and he never demanded the translated copies of any of the documents forming part of the grounds of detention. It is nowhere pleaded by the petitioner that he cannot read or write Urdu.

Thus, even on the facts, the petitioner's contention has no legs to stand. Otherwise also, from the relevant provisions of PITNDPS, dealing with the preventive detention, read with the Constitutional mandate under Article 22 (5) of the Constitution of India, I do not find that such requirement is mandatory and failure on the part of the detaining authority to supply the translated copies in all cases, vitiates the detention. This may be so if there is a specific request from the detenu to supply such copies in a language he understands and then there is failure on the part of the detaining authority to respond. Nothing of the sort has happened in the instant case. It is also not demonstrated before this Court as to how this omission on the part of the detaining authority has impacted the right of the detenu to make any effective representation, more so when the detenu chose not to make a representation either to the detaining authority or the Government. He had an option to appear before the Advisory Board and make such a submission before it but he has chosen not to do so. In such circumstances, the submissions of the learned senior counsel for the petitioner is wholly unacceptable and therefore, rejected.

16.The reliance placed by the learned senior counsel for the petitioner on a judgement rendered by the Supreme Court, relying upon its earlier judgement passed in the case of Smt Raziya Umar Bakshi v. Union of India AIR 1980 SC 1751, is too not applicable to the facts of the instant case.

17.Having considered the submissions and having gone through the judgements referred before me, I am of the view that the instant case is distinguishable on facts and is not covered by the aforesaid judgements for the reasons I have given herein above.

In re: Point no.VI:

18.The arguments of learned senior counsel for the petitioner that the failure of the detaining authority to mention the period of detention in the detention order itself vitiates the detention, flies in the face of provisions of Section 3(1) read with Section 9(f) as also the provisions of Section 11 of PITNDPS, which confers powers on the Government with regard to fixation of maximum period of detention. It would, therefore, be illegal if the detaining authority is permitted to fix such period of detention, even before the matter has gone to the Advisory Board and considered by the Government. Rather fixing of the maximum period of detention in the detention order in anticipation of its affirmation by the Advisory Board and the Government, would amount to overstepping jurisdiction and may vitiate the order of detention.

In re: Point no.VII:

19.The learned senior counsel appearing for the petitioner with a view to substantiate the ground of challenge, urges that since the detaining authority has adopted in the grounds of detention in verbatim what is supplied to it by the sponsoring authority by way of a dossier and therefore it is the case where there is total non-application of mind by the detaining authority to arrive at requisite satisfaction as envisaged under Section of PITNDPS.

20.I have considered the submissions made on behalf of both the sides. At the outset it would be befitting to refer to the observations made by the Constitution Bench of the Supreme Court in the case of State of The State of Bombay v. Atma Ram Shridhar Vaidya AIR 1951 SC 157. The paragraph 5 of the judgement lays law on the point and therefore in this context is reproduced hereunder:

"5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act there- fore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (8) the maintenance of supplies and services essential to the community ......... it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter- mine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on HCP no.278/2018 Page 12 of 14 information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government."

21.In the light of the aforesaid position of law settled by six Judge Constitution Bench way back in the year 1951, the scope of looking into the manner in which the subjective satisfaction is arrived at by the detaining authority, is extremely limited. This Court, while examining the material which is made basis of subjective satisfaction of the detaining authority, would not act as a court of appeal and find fault with the satisfaction on the ground that on the basis of the material before the detaining authority another view was possible. Such being the scope of enquiry in this aspect, I am afraid that the contention of the learned senior counsel for the petitioner is supported by any law and can be accepted. On the facts, I also do not find that the grounds of detention are replica of the dossier supplied by the sponsoring authority. The sponsoring authority not only supplied the material, viz. dossier, containing gist of the activities of the detenu but also supplied the material in the shape of FIRs and challan. All this material was before the detaining authority when he arrived at subjective satisfaction that the activities of the detenu are such, which would entail the preventive detention under the provisions of Section 3 of PITNDPS. The reliance placed by the learned senior counsel for the petitioner on the judgement reported as AIR 1985 SC 760, is totally misplaced.

22.No other ground was urged by the learned senior counsel on behalf of the petitioner.

23.Before I close, I find it pertinent to refer to the observations of the Supreme Court while dealing with the question of preventive detention under the Conservation of Foreign Exchange and HCP no.278/2018 Page 13 of 14 Prevention of Smuggling Activities Act, 1974, in the case of Prakash Chandra Mohan v. Commissioner, 1986 Cr.LJ 786. In paragraph 81 at page 701, the Supreme Court has observed as under:

"We must remember that observance of written law about the procedural safeguards for the protection of the individual is normally the high duty of public official but in all circumstances not the highest. The law of self-preservation and protection of the country and national security may claim in certain circumstances higher priority."

24.In view of the aforesaid analysis and the reasoning, I do not find it a fit case for indulgence. In the result, this petition is dismissed.

25.The detention record be returned to the counsel for the respondents.

(Sanjeev Kumar) Judge Srinagar 06.02.2019 Ajaz Ahmad, PS HCP no.278/2018 Page 14 of 14