Jammu & Kashmir High Court
Umar Jan vs Union Territory Of J&K & Anr on 28 February, 2023
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(Crl) No. 56/2022
Reserved on: 23.02.2023
Pronounced on: 28.02.202
Umar Jan
...Petitioner(s)
Through: Mr.Arshid Majid Malik , Advocate.
Vs.
Union Territory of J&K & Anr.
...Respondent(s)
Through: Mr. Pawan Dev Singh, Dy. AG
CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
1. Petitioner in the instant petition has been taken into preventive custody under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short 'the Act') read with SRO 247 dated 27.07.1988 in terms of the order of detention bearing No. PITNDPS 13 of 2022 dated 17.09.2022 (for short 'the impugned order).
2. The order of detention is challenged by the petitioner ( hereinafter called detenue) through the medium of this petition on the following grounds:-
i. That the detaining authority, respondent no. 2 had given reference of FIRs bearing No. 292/2016, 279/2018, 266/2021, 468/2021 of Police Station Udhampur and One DDR No. 10.09.2022 of Police Post Ropun Domail, Udhampur in a very casual manner in the grounds of detention and come to the Page |2 conclusion that the petitioner is a drug peddler. There is no mention with regard to the status of the aforementioned FIRs registered against the detenue and it is also not mentioned by the detaining authority in the grounds of detention that bail in the aforementioned FIRs was granted to the petitioner or not. As a matter of fact the petitioner stands already bailed out in the aforementioned false FIRs and the respondent no. 2 is silent on this aspect as to why detenue is required to be detained despite bail(s) granted by the Court.
ii. That the respondent No. 2 (Detaining Authority) had not mentioned the period of which the petitioner has been detained. The bare perusal of the impugned detention order shows that petitioner has been detained forever; therefore the detention order is without application of mind and according to the settled law, this type of lapse is a criminal negligence. Further the case of the detenu was never referred to the Advisory Board and this illegality is enough to set aside the detention of the petitioner. iii. That, the grounds of detention have been prepared on the basis of police dossier and the detaining authority has not applied its mind while passing the detention order and the detention order is replica of the dossier, as such, on this count the order of detention is bad in law and deserves to be set aside.
Page |3 iv. The detenue was never supplied with the copies of FIRs, Recovery memos, statements if any, recorded under Section 161 Cr.PC and other relevant material collected by the police during investigation in the aforementioned FIRs and DDR report on the basis of which the impugned detention order has been passed and in view of this the impugned order is liable to be set aside.
v. That the detenue is semi literate, whileas the order of detention is in hyper technical language and same is beyond the knowledge of the detenue, the detention order has neither been read over to the detenue in the language which he understands nor the translated script was furnished to him.
vi. That, even otherwise also the alleged recovery from the detenue does not fall in the category of commercial quantity but the detenue was booked under NDPS Act and has not even applied for bail and there was no justification for passing the detention order.
vii. That, as per the detention order it is stated that the detenue was providing drugs with an established network of drug peddlers in District Udhampur but no instances have been provided to when he has provided the drugs nor he has been provided with the copies of FIRs and in Page |4 absence of such material including the statements recorded under Section 161 CrPC, recovery of illicit trafficking of narcotic substances and in absence of such a material the detenue could not make an effective representation and as such the detention order is bad in law and deserves to be set aside. viii. That, to the knowledge of the detenue the detention order has not been executed as per the provisions of Public Safety Act and the detenue has not been asked to make a representation against his detention order, as such, on this count also the detention order is bad in law and deserves to be set aside.
ix. That, the right to liberty is a precious right and the same cannot be taken away by passing detention order on the whims and caprices of the detaining authority, as such, the detention order is illegal and renders to be set aside. x. The detenue was not provided any material which enables him to file an effective representation before the respondents No. 1 & 2, even then the detenu has filed a respresentation dated 12.10.2022 addressed to respondents 1 & 2 seeking withdrawal of his detention Order No. PITNDPS 13 of 2022 dated 17.09.2022 whereby the detenu was detained Page |5 under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 but the representation remain unattended. On this ground also the detention is bad in law.
3. Learned counsel for the detenue in addition to the grounds of detention of which reference is found in the petition has also made mention as to how counter affidavit filed by respondent No.2 is suggestive of the fact that the order impugned is bad. He has referred to Paras 3 of the said counter affidavit that the respondent No. 2 ( Detaining Authority) has power under section 3 of PITNDPS Act, 1988 r/w SRO 247 dated 27.07.1988 to detain the detenue namely Umar Jan who is a habitual drug peddler and is involved in number of cases in Narcotoc Drugs and Psychotropic Substances as such a number of FIRs have been registered against him in District Udhampur and is serious threat to the health and welfare of the people of District Udhampur and other adjoining areas. This illicit traffic has a harmful affect not only on the economy but is also responsible for spoiling the lives of hundreds of Youth. However, according to the learned counsel for the detenue there is no scope for treating the same as clerical error, as the liberty of a person is involved and same has to be done in accordance with the procedure established under law.
4. One more plea taken by learned counsel for the detenue is about the vagueness in the grounds of detention. It is being stated that the detenue is exploiting the young generation making them dependent on drugs and to make them habitual addicts, is not Page |6 being explained, thereby incapacitating the detenue to make an effective representation in terms of Article 22(5) of the Constitution of India.
5. Heard and considered.
6. The grounds of detention formulated by the detaining authority inter alia would show that the detenue was a member of habitual drug peddler working in district Udhampur, which was involved in procuring, transporting and sale of psychotropic substances. According to the detaining authority the detenue has spoiled the future of youth of the area by supplying them narcotic drugs leading and posing a serious threat to the lives of young generation of the youth and even to the economy of the UT of J&K. Accordingly, he was apprehended. The detaining authority was, thus, of the opinion that it has become imperative to detain the detenue in preventive detention with a view to prevent him from further committing any offence under the provisions of the NDPS Act.
7. It is true that the allegations leveled against the detenue that he was involved in exploiting the young generation by making them drug addicts, is all vague and in such situation the detenue would not be in a position to submit a meaningful representation before the detaining authority or the competent authority to have a fresh look into the matter. Vagueness does invalidate the detention order in the circumstance. In this regard reliance can be taken on the judgment of'Chaju Ram Vs. State of J&K, AIR 1971 SC 263', wherein it has been observed and enunciated that:-
Page |7 "Even as to the grounds, we have something to say. The grounds charge him with having conspired with some leaders of Democratic Conference and having incited landless people of R.S Pura Tehsil to forcibly occupy the land comprised in Nandpur Mechanised Farm and to have persuaded them to resist violently any attempt to evict them. No details of the leaders of the Conference or of the persons incited or the dates on which he conspired or incited the squatters or the time when such conference took place, are mentioned. It would be impossible for anybody to make a representation against such grounds. These grounds, on the authorities of this Court, too numerous to be cited here, must be held to be vague. Therefore on both the twin grounds, namely, that he was deprived of his right to make a representation and also because the grounds in themselves were very vague, we must hold that there was no compliance with the law as laid down in the Jammu and Kashmir Preventive Detention Act. The result, therefore, is that the detention must be declared to be unlawful and Chaju must be declared to be entitled to his liberty. He is ordered to be released. The detenu was questioned by us and he expressed a desire that he may not be released in Delhi, because he has no means of going back. He asked to be released in Jammu. We direct therefore that he shall be taken back to the place where he was in detention in Jammu and released within the shortest possible time."
8. On perusal of detention record, execution report, whereby detention order was executed by PSI Akhliesh Khajuria, reveals that detenue was provided detention order, notice of detention, grounds of detention only on 22.09.2022, but dossier, copies of FIRs, statements of witnesses and other relevant documents were with held. Respondents have failed to supply the dossier, FIR and other record of the case, based whereupon the order of detention had been passed to detain the detenue. The detenue has thus, been prevented from making an effective and meaningful representation in accordance with law and his rights under Article Page |8 22 of the Constitution of India, again lending substance to the challenge to the detention order.
9. So far as the contours of this requirement and sufficient compliance thereof is concerned, reliance can be placed on the judgment of the Supreme Court reported as'AIR 1999 SC 3051 Sophia Gulam Mohd. Bham, vs. State of Maharashtra'. Paras12, 13, and 14 of the same read as under :
"12. The detenu was thus informed that he has a right not only to make a representation to the Detaining Authority against the order of detention but also to the State Government and the Central Government.
13. Now, an effective representation can be made against the order of detention only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion that the detention of Bham Faisal Gulam Mohammed was necessary, were supplied to him. It is only when he has looked into those documents, read and understood their contents that it can be said that the detenu can make an effective representation to the Detaining Authority, State or Central Government, as laid down in Article 22 (5) of the Constitution which provides as under :
"When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
14. The above will show that when a person is detained in pursuance of an order made for preventive detention, he has to be provided the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that order. Both the requirements have to be complied with by the Page |9 authorities making the order of detention. These are the rights guaranteed to the person detained by this clause of Article 22 and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words "as soon as may be" indicate a positive action on the part of the Detaining Authority in supplying the grounds of detention. There should not be any delay in supplying the grounds on which the order of detention was based to the detenu. The use of the words "earliest opportunity" also carry the same philosophy that there should not be any delay in affording an adequate opportunity to the detenu of making a representation against the order of detention. The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."
10. Reproducing the dossier prepared by the Senior Superintendent of Police, Udhampur the order of detention, almost word by word; non furnishing of the whole of the material on which detention order was based; furnishing the material in English and not the language of the detenue; and not informing detenue of the time limit in which detenue could make representation before the Detaining Authority or the Government, all reflect that the Detaining Authority has not applied its mind to draw the subjective satisfaction to detain the detenue. The detenue, as such, has been deprived of his fundamental right to P a g e | 10 make effective and meaningful representation against the detention order to the Detaining Authority and the government rendering the same as illegal and unsustainable.
11. Admittedly, as is evident from the copy of representation dated 12.10.2022 which has been sent to the respondent detaining authority on 20.10.2022 through registered post, the detenu had filed the representation against his detention and the same was not considered by the respondent(s) till date, inasmuch as, there is no mention with regard to the said representation in the counter affidavit filed by the respondents. In these circumstances, this Court is left with no option, but to accept the stand of the petitioner that he has moved representations against his detention, but the same has not been considered.
12. Article 22(5) of the Constitution of India, casts legal obligation on the Government to consider the detenue's representation as early as possible. It is the bounden duty of the detaining Authority or the Government, as the case may be, to consider the representation of the detenu and pass appropriate orders thereon. There should be no slackness, indifference and callous attitude in consideration of the representation of the persons who are detained. Any unexplained delay would be breach of constitutional imperative and it would render the continued detention of the detenu as illegal. Every day delay in dealing with the representation has to be explained and the explanation offered must be reasonably indicating that there was no slackness or indifference.
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13. In Tara Chand vs State of Rajasthan & Ors., 1980 (2) SCC 321, Hon'ble Supreme Court has held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the very detention illegal. The Supreme Court in another case Rahmatullah vs State of Bihar, AIR 1981 SC 2069 has held that clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. The obligation of the Government to afford to the detenu an opportunity to make representation is distinct from the Government's obligation to refer the case of the detenu along with representation to the Advisory Board to enable it to form its opinion and send a report to the Government. Therefore, it is implicit in clauses (4) and (5) of Article 22 that the Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The Supreme Court in the case of Kundanbhai Dulabhai Sheikh vs. District Magistrate Ahmedabad & Ors. 1996 Crl.L.J 1981 quashed the detention order only on the ground of delay in disposing of the representation. Having gone through the observations of the Supreme Court in the aforesaid cases, this court is of the considered view that the said decisions with all fours are applicable to the instant case. Therefore, the detention order is liable to be quashed.
14. Detention has been based on registration of four cases one each in the years 2016 and 2018 and two in the year 2021. These P a g e | 12 cases and the detention order have no proximate link so as to act upon to order preventive detention. On this count also the impugned detention order is not sustainable.
15. In view of the legal position, as stated hereinabove, and in particular having regard to the fact of non-furnishing of whole of the material, on which the detention order has been based, to the detenue has made him disabled to make an effective and meaningful representation against the detention order, vitiates the same which is not sustainable. The impugned order is, therefore, liable to be quashed on these counts alone.
16. Resultantly, this petition is allowed. The impugned Detention Order bearing No. PITNDPS 13 of 2022 dated 17.09.2022, is quashed. The detenue namely Umar Jan S/O Late Aman Din R/O Housing Colony, Udhampur Tehsil and District Udhampur, is directed to be released forthwith, if not required in any other case(s). Detention record, as produced, be returned back to learned Dy. AG
17. Disposed of accordingly.
Jammu
28.02.2023
Mujtaba (M A CHOWDHARY)
JUDGE
Whether the order is reportable: Yes / No