Jammu & Kashmir High Court - Srinagar Bench
Gowher Ahmad Najar vs Ut Of J&K & Anr on 25 July, 2022
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 95/2022
Reserved on 05.07.2022.
Pronounced on 25 .07.2022.
Gowher Ahmad Najar.
...Petitioner/Appellant(s)
Through: Mr Altaf Mehraj, Advocate
Vs
UT of J&K & Anr.
...Respondent(s)
Through: Mr. Sajad Ashraf, GA
CORAM:
HON'BLE Ms JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1. Gowhar Ahmad Najar son of Farooq Ahmad Najar resident of Pinglen (for short "detenu") has been, vide order No.DIVCOM-
"K"/194/2022 dated 15th February, 2022, issued by Divisional Commissioner, Kashmir - respondent no.2 here (for brevity "detaining authority") placed under detention and lodged in Central Jail Kote Bhalwal, Jammu. It is this order that has been thrown to challenge in instant petition.
2. The case set up in the petition is that the detenu was summoned to Police Station Pulwama in connection with FIR No.302/2021, for the commission of offences punishable under Section 8/21, 22 Narcotic Drugs and Psychotropic Substances Act, (for short NDPS Act), where he was detained illegally and then shifted to Central Jail Kotebalwal, Jammu to be detained under the provisions NDPS Act, in terms of the impugned order. It is maintained in the petition that the grounds of detention as formulated by the Divisional WP (Crl) No. 95/2022 1 of 6| P a g e 2 Commissioner, Kashmir have been incorporated in the dossier, prepared by the SSP Pulwama which ipso facto demonstrate complete non-application of mind on part of the Detaining Authority and that no compelling reasons have been assigned in the detention order. The detenu is stated to have been falsely implicated in the aforementioned FIR, when the detenu has no connection with the allegations levelled therein. The detention order has been proposed on 01.11.2021 and has been actually passed on 15.02.2022 that is after more than three months from the last alleged activity and during these three months the detenue was in the custody of the police, the proximity of the detention order with the alleged apprehension more particularly given the fact that the detenue was in police custody during the period of this delay and no fresh activity has been attributed to him which would warrant to nurture the apprehension as mentioned in the grounds of detention order. It is further stated that the relevant material has not been furnished to the detenue so as to enable him to make an effective representation. The material which has been furnished to the detenue is not sufficient for making the effective representation. Therefore, the constitutional rights guaranteed to the detenue stand infringed and for that reason also the detention of the detenue is legally bad and liable to be set aside.
3. Learned counsel for respondents filed the counter affidavit and has resisted the petition on the ground that detention order has been passed in exercise of powers vested with Detaining Authority in terms of section 3 of NDPS Act, with a view to prevent detenu from indulging in illegal trade of illicit traffic in narcotic drugs and WP (Crl) No. 95/2022 2 of 6| P a g e 3 psychotropic substance. It is insisted that drug trafficking poses a great threat to the society for the reason that proceeds of drug sale can be utilized for financing of other criminal activities and that detenue has made the life of peace loving citizens of Pulwama miserable. It is further stated that consignment seized from detenu's possession shows that detenu is fully involved in illegal trade with conscious mind, working in an organized manner, is a threat for sustaining moral values of the society, and in the welfare of young generation in the union territory of Jammu and Kashmir. It is further stated that the detention order does not suffer from any malice or legal infirmity, inasmuch as, the safeguards provided under the Constitution have been followed while ordering the detention of the detenue, as such, challenge thrown to the impugned order of detention is not sustainable. The basis of detention is the satisfaction of the Executive of a reasonable probability of likelihood of detenue acting in a manner similar to his past acts and preventing him by detention from doing the same.
4. I have heard learned counsel for parties and considered the matter. I have gone through the detention record made available by Mr. Sajad Ashraf, learned Government Advocate.
5. The record reveals that the detenu is reportedly involved in illegal trafficking of drugs, like Codeine, and concealed/stored the same illegally in his cowshed under grass so as to increase his earnings and is stated to be an active member of drug mafia, which is hell bent to spoil the life and career of young generation. The local population is alleged to have suffered with detenu's dealings and conduct. The contraband seized from detenu's possession was sent WP (Crl) No. 95/2022 3 of 6| P a g e 4 to Forensic Science Laboratory, Srinagar, for ascertaining its veracity and the report suggests that it contains tranquilizer and other material which is a narcotic analgesic, anti-allergic and anti- tussive. The consignment seized from the possession of detenu shows that he is fully involved in the illegal trade with conscious mind, posing a huge threat for sustaining moral values of the society.
6. The Supreme Court in Hardhan Saha v. State of W.B., (1975) 3 SCC 198, has succinctly pointed out difference between preventive and punitive detention in the following words:
"The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The, basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent."
7. In Naresh Kumar Goyal v. Union of India, (2005) 8 SCC 276, the Court observed:
"It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperilling the welfare of the country or the security of the nation or from disturbing the public tranquillity or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and WP (Crl) No. 95/2022 4 of 6| P a g e 5 psychotropic substances etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so."
8. The citations referred to in the petition and relied upon by learned counsel during course of arguments, titled Sayed Abdul Ala vs. Union of India & ors AIR 2007 SCW; Icchu Devi Choraria vs. Union of India (1980) 4 SCC 531; LallubhaiJogibhai Patel vs. Union of India (1981) 2 SCC 427 and judgement dated 11th August 2011 in HCP no.185/2011 titled Mehraj Ahmad Bhat versus State and others passed by the Court are distinguishable from the facts and circumstances of present case.
9. Perusal of detention record reveals that detenu at the time of execution of detention was provided copy of the detention order, copy of the grounds of detention and other material. The detenu, as record would reveal, was also informed as regards making of representation against the detention order if he so desires, both to Detaining Authority and the Government. The grounds of detention have been read over to the detenu in the language he understands in presence of witnesses, whose signatures are affixed overleaf the detention order. The grounds of detention are definite, proximate and free from any ambiguity. The detenu has been informed with sufficient clarity what actually weighed with the Detaining Authority to pass the detention order. The Detaining Authority has narrated facts and figures that made the it to exercise its powers under Section 3 of NDPS Act, to record WP (Crl) No. 95/2022 5 of 6| P a g e 6 subjective satisfaction that detenu was required to be placed under preventive detention in order to prevent him from committing any of the acts within the meaning of illicit trafficking. The Detaining Authority has informed the detenu that he is an accused in aforementioned case, involving illegal trafficking of narcotic substances, which poses serious and huge threat to the society particularly health, wealth and welfare of the people especially young generation. The detenu, therefore cannot be heard saying that any of his Constitutional and Statutory rights have been violated by the detention order.
10. For all what has been discussed above, the petition is dismissed.
11. Detention record be returned to counsel for respondents.
(MOKSHA KHAJURIA KAZMI) JUDGE Srinagar July, 25.07. 2022.
"Abdul Rashid "
Whether the Judgment is reportable Yes/No. WP (Crl) No. 95/2022 6 of 6| P a g e