Jammu & Kashmir High Court - Srinagar Bench
Gulzar Ahmad Sheikh vs Union Territory Of J&K & Anr on 21 May, 2022
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No. 139/2021
Reserved on: 13.05.2022
Pronounced on: 21.05.2022
Gulzar Ahmad Sheikh
...Petitioner(s)
Through: Mr. Saqib Amin Parray, Advocate
vice Mr.M.Ayoub Bhat, Advocate.
Vs.
Union Territory of J&K & Anr.
...Respondent(s)
Through: Mr. Sajad Ashraf, GA.
CORAM: HON'BLE MR. JUSTICE M. A. 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"/159/2021 dated 15.05.2021 (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 allegations made in the grounds of detention are vague, non-existent and no prudent man can make a representation against such allegations and passing of detention on such grounds is unjustified and unreasonable. ii. That, the detaining authority has not given any specific details, month, date of the alleged Page |2 occurrence in the grounds of detention so that effective representation could be made against the detention order nor the detaining authority has given any justified reasons to pass the detention order on single alleged activity particularly given the fact that the detenue has no past antecedents.
iii. That, the detenue was already in custody in case FIR No.105/2020 and he had neither applied for bail nor bail was otherwise due to him readily in view of the provisions of NDPS Act.
iv. That, the detaining authority despite having the knowledge of the fact that the detenue was already in custody has not spelled out the compelling reasons to the detention order against the detenue once he was already in custody in connection with a criminal offence. v. That the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite before passing any detention order. The detaining authority has relied only on the police dossier.
vi. That, the detenue has not been provided copy of
dossier and other connected material like
statement of witnesses recorded during
investigation, arrest memo, seizure memo, FSL report of FIR 27/2020, to enable him to make Page |3 and effective representation by giving his version of facts attributed to him.
vii. That, the detenue is not an English literate and understands only Urdu/Kashmiri language but the order of detention is in English and no translated script in Kashmiri or Urdu was furnished to the detenue nor was the grounds of detention read over and explained to him in the language he understands so that he can make effective representation, violating his fundamental right under Article 22 of the Constitution of India.
3. Learned counsel for the detenue pleaded that the impugned order of detention or the grounds of detention formulated by the detaining authority does not indicate any compelling reason necessitating preventive detention of the detenue after he had already been taken into custody by the police for alleged commission of offence under Section 8/20 of the NDPS Act. Learned counsel, thus, submitted that preventive detention of the detenue is illegal for the same having been passed at a time when the detenue was in the custody of the authorities of the UT.
4. 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 (g) and 6 of the said counter affidavit. In 'Para 4(g)' 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 Page |4 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 Srinagar 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.
5. 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.
6. Heard and considered.
7. Legal position in regard to preventive detention of a person, who is already in custody of the State Agencies in connection with commission of offence under substantive law allegedly committed by him is well settled. Normally, preventive detention of such a person should not be ordered. However, preventive detention of such a person can still be ordered, if the detaining authority has 'compelling reasons' to believe that he is likely to be released in the substantive offence either on bail or due to his acquittal or discharge. In Binod Singh v District Magistrate Dhanbad, Bihar and others, (1986) 4 SCC 416, Hon'ble Apex Court Page |5 has held that if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In Surya Prakash Sharma v State of U.P. and others, 1994 Supp (3) SCC 195, Hon'ble Apex Court has referred to an earlier three- Judge Bench judgment in Dharmendra Suganchand Chelawat v Union of India, (1990) 1 SCC 746, wherein observation has been made in following manner:
"The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenue is already in detention: and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression "compelling reasons"
in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenue, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."
8. The grounds of detention formulated by the detaining authority inter alia would show that the detenue was a member of an organized drug trafficking gang working in district Srinagar, 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 12.03.2021 in terms of Section 29 of NDPS Act, which was proved against him. The detaining authority was, thus, of the opinion that it has become imperative to detain the Page |6 detenue in preventive detention with a view to prevent him from further committing any offence under the provisions of the NDPS Act.
9. It is clear that the detaining authority was aware that at the time of passing of the order of detention the detenue was already in custody in connection with offence under Section 8/20 of NDPS Act, which is a non-bailable offence. The order of detention or the grounds of detention would show that the detaining authority has not recorded any reason to believe that there was any possibility of immediate release of the detenue from custody nor any compelling reason for passing the order of detention at that point of time has been stated.
10. 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 Page |7 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."
11. As indicated in the execution of detention order reported by ASI Farooq Ahmad and the receipt obtained from the detenue on 27.05.2021, following material/record had been furnished to him and informed of his right to make representation.
Detention warrant 01 leaf
Grounds of detention 02 leaves
Notice of detention 01 leaf
Police Dossier Nil
Other relevant record 03 leaves
Total 07 leaves
12. Respondents have, therefore, 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.
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13. 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 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 Page |9 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."
14. In view of the legal position, as stated above and in particular having regard to the fact that an order of preventive detention against a person passed at a time when that person is already in the custody of the Authorities for commission of an act under substantive law, is illegal unless there is possibility of immediate release of the person from custody in the substantive offence and there are compelling reasons for passing of the order of preventive detention. Such a situation is required to be reflected in the order of detention or the grounds of detention formulated by the detaining authority. Not furnishing of whole of the material, on which the detention order has been based, to the detenue has also 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.
15. Resultantly, this petition is allowed. The impugned Detention Order bearing No. DIVCOM-"K"/159/2021 dated 15.05.2021, is quashed.
P a g e | 10 The detenue namely Gulzar Ahmad Sheikh S/O Latif Ahmad Sheikh R/O Sheikh Hamzah Colony Zakura Srinagar, is directed to be set free, if not required in any other case(s).
16. Disposed of accordingly.
17. Detention record, as produced, be returned back to learned GA.
(M. A. CHOWDHARY) JUDGE Srinagar 21.05.2022 Muzammil. Q Whether the order is reportable: Yes / No