Point of Law: Criminal Trial - Illicit Traffic - Seeking quashment of detention order - Detaining authority has not indicated any compelling reasons to justify the preventive detention of the detenue when he was already in custody of the State for commission of substantive offences under NDPS Act and had been formally booked in FIR

JUDGMENT :

SANJEEV KUMAR, J.

1. This petition for Habeas Corpus is filed by the petitioner through his father, Fayaz Ahmad Hakak, seeking quashment of detention order bearing No. DIVCOM-“K”133/2020 dated 19.05.2020 (the impugned order) issued by Divisional Commissioner, Kashmir (the detaining authority), whereby petitioner has been put under preventive detention with a view to preventing him from committing any act within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act and for maintenance of public order.

2. Before adverting to the grounds of challenge taken by the petitioner to assail the impugned order, it would be appropriate to briefly state few background facts.

3. On the basis of communication of Senior Superintendent of Police, Srinagar, issued vide his No. LGL/Det-3222/20/5186-89 dated 28.04.2020, whereby some material including dossier and other connected documents in respect of the petitioner was submitted to the detaining authority, the detaining authority arrived at satisfaction that with a view to preventing the petitioner from committing any act within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act and for maintenance of public order, it was necessary to detain him and, accordingly, the impugned order of detention was passed. The grounds of detention, claimed to have been served upon the petitioner, indicate activities of the petitioners in some detail. As per the grounds of detention, it is alleged that the petitioner is involved in illicit trafficking of drugs and psychotropic substances. In the year 2018, he was arrested by police during a Naka Checking and narcotic drugs were recovered which, it is alleged, he was carrying to sell among youth of area especially school going boys. Accordingly, a case FIR No. 113/2018 under Section 20/22 of NDPS Act was registered against him in Police Station, Nigeen, and later on petitioner was released from custody. It is also claimed that as per the reports received from field agencies, the petitioner is clandestinely dealing in illegal business of narcotics and in order to carry out this illegal trade, he is exploiting the immature minds of younger generation by making them dependent on drugs and is hell-bent to spoil the life and career of younger generation by selling drugs to them.

4. It is on the basis of aforesaid activities of the petitioner and his involvement in the aforesaid FIR, the detaining authority has derived satisfaction that it imperative to detain the petitioner under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

5. The petitioner has challenged the impugned order of detention on several grounds. The grounds of challenge which were pressed during the course of arguments by learned counsel appearing for the petitioner are as under:

(i) That the subjective satisfaction derived by the detaining authority is vitiated for the reason that the detaining authority has clubbed two different types of activities allegedly attributable to the petitioner and it is not clear as to whether the impugned order has been issued to prevent the petitioner from indulging in illicit trafficking of drugs and psychotropic substances or it is for maintenance of public order.

(ii) That at the time of passing of the order of detention, the detenue was already in custody of State and had not even applied for bail and, therefore, it was necessary for the detaining authority to indicate the compelling circumstances for passing the impugned detention order.

6. On being put on notice, the detaining authority has filed a detailed reply affidavit to justify the impugned order of detention. It is submitted that the order of detention does not suffer from any malice or legal infirmity, inasmuch as safeguards provided under the Constitution as also the rights of the detenue have been adhered to while ordering his detention. It is also submitted that the impugned order of detention i