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2018 Supreme(J&K) 969
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
M.K. HANJURA, J.
State of J&K - Appellant
Versus
Irshad Hussain Parray - Respondent
CRMC No. 302 of 2017
Decided On : 17-05-2018
Advocate Appeared:
For the Appellant : Q.R. Shamas, Dy. AG
The central legal point established in the judgment is the government's authority to regulate the place and conditions of detention, emphasizing that the trial court cannot override this authority.
Headnote:
CUSTODY - Detention Order - The court quashed an order directing the change of custody of the accused from one district jail to another, emphasizing the power of the government to regulate the place and conditions of detention under the J&K Prevention of Illegal Traffic in Narcotic Drugs and Psychotropic Substances Act, 1998.
Fact of the Case:
An application was filed to shift the custody of the accused from one district jail to another due to financial constraints faced by the family. The trial court granted the application, but the State challenged the order, citing the government's power to regulate detention under the relevant Act.
Finding of the Court:
The court found that the trial court's order could not sustain in the eyes of the law, emphasizing the government's authority to regulate the place and conditions of detention. The order was quashed, and the trial court was directed to comply.
Issues: The issues revolved around the power of the government to regulate the place and conditions of detention, the trial court's authority to change the custody of the accused, and the legality of the order in light of the relevant legal provisions.
Ratio Decidendi: The court emphasized the government's power to regulate the place and conditions of detention under the J&K Prevention of Illegal Traffic in Narcotic Drugs and Psychotropic Substances Act, 1998, and highlighted that the trial court cannot override the detention order by changing the custody of the accused.
Final Decision: The court quashed the order directing the change of custody and directed compliance with its decision.
JUDGMENT :
M.K. Hanjura, J.
1. An application came to be filed before the Learned Sessions Judge, Bandipora, for shifting the custody of the respondent from District Jail Udhampur to District Jail Baramulla on the grounds that the accused is facing trial before him in case bearing FIR No. 41/2015 of Police Station Hajin U/s 8/20 NDPS Act. It is also stated in the Application that it is not possible for the members of the family of the petitioner to go to Udhampur to see him as it shall involve a huge financial expenditure. The Learned Court determined the said application by an Order dated 30.03.2017 directing the change of the custody of the petitioner/accused from District Jail Udhampur to District Jail, Baramulla with a further stipulation that the In-charge District Jail, Baramulla shall produce the accused before the Court presided over by him on the next date.
2. The State of Jammu and Kashmir (Home Department) has challenged the validity of the said order in this petition filed U/s 561-A No. 302/2017 on the grounds inter-alia, that the order impugned cannot sustain in the eyes of law. The State Government has the power to regulate the lodgment and detention of the detenue. It is also stated that under Section 5 of the J&K Prevention of Illegal Traffic in Narcotic Drugs and Psychotropic Substances Act, 1998, the power to regulate, the conditions of detention has to be exercised by the Government.
3. It needs must be said that the respondent has acknowledged the receipt of notice but has not appeared in the Court to contest the petition.
4. Heard and considered.
5. The respondent has been detained by the Divisional Commissioner, Kashmir in exercise of powers vested in him under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1998 in terms of Order No. DWCOM "K", 49/2017 dated 16.02.2017 with the direction to lodge the detenue in District Jail, Udhampur for the period specified therein. This detention order has been upheld by the Court in HCP No. 71/2017 titled "Irshad Hussain Parray V. State of J&K & Ors." The order impugned in this petition has been passed after the order of the detention of the detenue. Section 5 of J&K Prevention of Illegal Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 which has a direct bearing on the decision of this petition reads as under:-
(Power to regulate, place and conditions of detention:-
Every person in respect of whom a detention order has been made shall be liable:-
(a) to be detained in such place and under such conditions including conditions as to maintenance, interviews or communication with others, discipline and punishment for breach of discipline, as the Government may, by general or special order, specify; and
(b) to be removed from one place of detention to another place of detention, within the State.)
6. Section 5 on the face of it gives the power to regulate, place and the conditions of the detention to the Government. A detenue can be removed from one to the other place of detention within the state under and in terms of Section 5 cited above. It is purely within the ambit and jurisdiction of the Government to do so. Section 5 is in tune and line with the Section 10 of the Public Safety Act. Interpreting the provisions of Section 10 of the Public Safety Act, this Court in the law laid down in the case of "Suhail Ahmad Kataria v. State Th. Supdt., Central Jail, Srinagar" reported in 2006 (2) JKJ 508 [HC] observed as under:-
7. The detaining authority i.e. executive, while fixing the lodgment, has to take into account the, conditions prevailing in the State, allegations levelled against the accused/detenue, security of the State and the safety of the inmates who are lodged in the jails and also of the staff of the concerned jail.
8. The authority concerned is under legal obligation to bring the detenue before the court on each hearing and it is its duty to provide sufficient security to the detenue also.
9. In this backdrop, the
