Jammu & Kashmir High Court - Srinagar Bench
Majid Rehman Khan vs Union Territory Of J&K & Anr on 22 November, 2022
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 221/2022
Reserved on: 03.11.2022
Pronounced on: 22.11.2022
Majid Rehman Khan
...Petitioner(s)
Through: Mr. M.A.Wani, Advocate.
Vs.
Union Territory of J&K & Anr.
...Respondent(s)
Through: Mr. Sajad Ashraf, GA.
CORAM: HON'BLE MR. JUSTICE MD. AKRAM CHOWDHARY, JUDGE
JUDGMENT
1. Detenue 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') in terms of the order of detention bearing No. DIVCOM-"K"/221/2022 dated 13.04.2022 (for short 'the impugned order).
2. The order of detention is challenged by the detenue through the medium of this petition on the following grounds:-
i. That, the detenue is a baker by profession and is a peace loving and law abiding person and has never affiliated in any contraband trade related activities and the grounds of detention are false, baseless, frivolous and on the basis of no material facts, the detenue has never indulged in any prevention of illicit traffic in narcotic drugs, Page |2 on this ground alone the detention order is liable to be quashed.
ii. 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.
iii. That, as per the detention order it is stated that the detenue was providing drugs with an established network of drug peddlers in and around Kupwara but no instances have been provided to when he has provided the drugs nor he has been provided with the copies of FIR and in absence of such material including the statement recorded under Section 161 Cr. PC 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. iv. 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, Page |3 on this count the order of detention is bad in law and deserves to be set aside.
v. That the detenue is semi literate, while as 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, the detenue has not moved any application for grant of bail nor any bail was granted in his favour, therefore there is no compelling reason and cogent material to pass the detention order against the detenue. vii. 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.
viii. 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.
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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 4 (d) and 6 of the said counter affidavit. In 'Para 4(d)' it is stated that the consignment seized from the detenue clearly shows that the detenue was involved in the illegal trade with conscious mind, in an organized manner which is great threat for sustaining moral values of our society. Thus, this aspect poses a serious threat to the health, wealth and welfare of the people especially young generation of the Union Territory in general and of District Kupwara in particular. Whereas, in 'Para 6' it is being stated that on examination of the material/record it was found necessary to prevent the detenue from indulging in the illegal trade of illicit traffic in narcotic drugs and psychotropic substances. 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 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 an organized drug Page |5 trafficking gang working in district Kupwara, which was involved in procuring, transporting and sale of psychotropic substances. According to the detaining authority the detenue has spoiled the youth of the area by supplying them narcotic drugs leading to law and order problem. Accordingly, he was apprehended on 08.02.2022. 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:-
"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 Page |6 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. 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 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'. Paras 12, 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 Page |7 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 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. 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 Page |8 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.
11. Resultantly, this petition is allowed. The impugned Detention Order bearing No. DIVCOM-"K"/221/2022 dated 13.04.2022, is quashed. The detenue namely Majid Rehman Kha S/O Abdul Rehman Khan R/O Gundsanah Haihama District Kupwara, is directed to be set free, if not required in any other case(s).
12. Disposed of accordingly.
13. Detention record, as produced, be returned back to learned GA.
(MD. AKRAM CHOWDHARY) JUDGE Srinagar 22.11.2022 Muzammil. Q Whether the order is reportable: Yes / No