Jammu & Kashmir High Court - Srinagar Bench
Talib Hussain Shah vs State Of J&K & Another on 4 December, 2020
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE)
Reserved on: 17.112020
Pronounced on:04.12.2020
WP(Crl) No.75/2020
Talib Hussain Shah ...Petitioner(s)
Through: - Mr. M. A. Wani, Advocate.
Vs.
State of J&K & another ...Respondent(s)
Through: - Mr. B. A. Dar, Sr. AAG
CORAM: HON‟BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.
JUDGMENT
1) Impugned in this petition is the order of detention bearing No.DIVCOM-"K"/134/2020 dated 01.06.2020, passed by Divisional Commissioner, Kashmir, (the detaining authority), whereby Mr. Talib Hussain Shah (the detenue) has been ordered to be detained in preventive custody with a view to prevent him from committing any of the acts within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (the Act of 1988). The impugned order has been assailed by the detenue through his father, namely, Bashir Ahmad Shah, on various grounds which I shall advert to after briefly noticing the facts leading to the passing of the impugned order of detention.
MOHAMMAD ALTAF BHAT 2020.12.04 11:42 I attest to the accuracy and integrity of this document 2 WP(Crl) No.75/2020
2) Senior Superintendent of Police, Kupwara, vide his letter No.Pros/Dos-06/2020/12527-30 dated 27.04.2020, submitted record of activities of the detenue in the shape of dossier to the detaining authority. In the dossier the information provided to the detaining authority, inter alia, included that the detenue, who is a resident of Village Harkarpora Awoora and has read up to 12th class, has been indulging in illicit trafficking of drugs and psychotropic substances. The activities detenue has been indulging in over a period of time have posed a serious threat to the health and welfare of the people especially the youth of District Kupwara. The detenue was apprehended by the personnel of Police Post, Awaoora, on 16th of September, 2019 and was found in possession of „Charas‟ weighing 160 grams which he had obtained through illegal sources. A case FIR No.45/2019 under Section 8/20 NDPS Act was registered in Police Station, Trehgam. It is further stated that during the course of investigation, statements of witnesses were recorded and the samples seized were got examined from FSL, Srinagar. It was found that the contraband seized was „Charas‟. The detenue, however, got bail from the competent court of law in the aforesaid case. It is further stated that on 25 th of February, 2020, the detenue was once again apprehended by the police personnel of Police Station, Kupwara during Naka Checking at General Road, Gulgam, and was found in possession of contraband (Charas) weighing 400 grams which too had been obtained by him through illegal sources. Case FIR No.35/2020 under Section 8/20 NDPS Act was registered in Police Station, Kupwara. It is submitted that the investigation in the MOHAMMAD ALTAF BHAT 2020.12.04 11:42 I attest to the accuracy and integrity of this document 3 WP(Crl) No.75/2020 matter has been conducted and the expert opinion from FSL alone is awaited. The detenue, however, was bailed out by the competent court of law in the aforesaid FIR as well. On the basis of two occurrences in which the detenue was caught with contraband, the police concluded that the detenue was a committed drug trafficker and his activities if not checked would destroy generation of youth. Accordingly, the police recommended that in view of activities of the detenue, it was imperative to put him under preventive detention.
3) Acting upon the aforesaid dossier supplied by the police along with other connected documents/material, the detaining authority recorded its satisfaction that given the activities indulged in by the detenue, it was necessary to detain him in preventive detention to prevent him from committing the offences under NDPS Act. Invoking Section 3 of the Act of 1988, the detaining authority directed detention of the detenue with a direction to lodge him in District Jail, Anantnag, for a period to be specified by the Government/Advisory Board.
4) The petitioner has assailed his detention, inter alia, on the following grounds:
(I) That the detenue has not been made aware of his right to make representation against his detention and, therefore, the order of detention is vitiated being in total violation of Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act;
MOHAMMAD ALTAF BHAT 2020.12.04 11:42 I attest to the accuracy and integrity of this document 4 WP(Crl) No.75/2020 (II) That the detenue at the time of detention was already on bail and had not indulged in any culpable activity while on bail and, therefore, there were no compelling reasons, much less a justification, to put the detenue under preventive detention;
(III) That the impugned order suffers from total non-application of mind as the detention of the detenue has been ordered with a view to prevent him from acting in any manner prejudicial to the public order and also for committing the acts which are punishable under the Act of 1988.
5) The respondents have filed their reply affidavit. It is the stand of the respondents that the J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, was repealed with the promulgation of J&K Re-organization, 2019. However, the impugned detention order was passed by the competent authority under the corresponding Central Act i.e. the Act of 1988 which came to be extended to the Union Territory of Jammu and Kashmir by virtue of J&K Re-organization (Removal of Difficulties) Order, 2019. The respondents have sought to draw up a distinction between the preventive and punitive detention. On merits, it is contended by the respondents that the detenue was a habitual drug trafficker and had been indulging in the prohibited activities over a period of time. He was caught red handed with contraband on two occasions and two FIRs came to be registered against him but in both the FIRs the detenue was MOHAMMAD ALTAF BHAT 2020.12.04 11:42 bailed out by the competent court of law. It is thus urged that in these I attest to the accuracy and integrity of this document 5 WP(Crl) No.75/2020 circumstances when ordinary law of the land had failed to deter the detenue from indulging in the activities prejudicial to the health and welfare of the public, there was no option left with the respondents but to have resort to Section 3 of the Act of 1988 and detain the petitioner in preventive custody.
6) Having heard learned counsel for the parties and perused the record, I am of the view that the impugned detention order cannot sustain for a simple reason that the detaining authority despite having been furnished the requisite material by Senior Superintendent of Police, Kupwara, has not shown any awareness that the detenue though booked in two FIRs had already been bailed out. The detaining authority has also not recorded its satisfaction as to whether the detenue after having been released on bail on the second occasion had continued with his activities thereby necessitating his detention under preventive law.
7) From a perusal of grounds of detention served upon the detenue, it is abundantly clear that the detaining authority was aware that for two different occurrences, two FIRs stood registered in Police Station, Trehgam and Police Station, Kupwara, under Section 8/20 of NDPS Act but the detaining authority is silent as to whether the petitioner was ever arrested in those FIRs and thereafter bailed out by the competent court of law though the dossier supplied by the police makes such mention. The detaining authority has also not disclosed any compelling reasons to order the detention of the detenue when the detenue after MOHAMMAD ALTAF BHAT 2020.12.04 11:42 being released on bail has not committed any prohibited and culpable I attest to the accuracy and integrity of this document 6 WP(Crl) No.75/2020 activity. This speaks volume about the non-application of mind displayed by the detaining authority in passing the order of detention.
The ground of challenge that the impugned detention order is vitiated by total non-application of mind and is bereft of requisite satisfaction of the detaining authority goes to the root of detention and vitiates all actions leading to the preventive detention of the detenue.
8) In view of the aforesaid, this Court does not find it necessary to advert to other grounds of challenge urged by the petitioner in support of his plea seeking quashment of the detention.
9) For the foregoing reasons, this petition is allowed. The impugned order of detention is quashed. Direction is issued to the respondents to release the detenue from the preventive custody forthwith, provided he is not required in connection with any other case.
(Sanjeev Kumar) Judge Srinagar 04.12.2020 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
MOHAMMAD ALTAF BHAT
2020.12.04 11:42
I attest to the accuracy and
integrity of this document