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2020 Supreme(J&K) 548
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Tashi Rabstan, J.
(Through Video Conference from Jammu)
Javid Ahmad Mir and Ors.
Versus
Union Territory of J&K and Ors.
WP (Crl) No.645/2019 c/w WP(Crl) No.646/2019 and WP(Crl) No.649/2020
Decided on 27.10.2020
Appearing Counsel:
For the Petitioner(s) in WP(Crl) Nos.645 & 646/2019:Mr. M. Ayoub Bhat, Advocate
For the Petitioner(s) in WP(Crl) No.649/2019:Mr. Arshid Ahmad Wani, Advocate
For the Respondent(s): Mr. B.A. Dar, Sr. AAG
Headnote:
Preventive Detention - Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Grounds of Detention - Sufficiency of Material - Satisfaction of Detaining Authority - Role of Advisory Board - Scope of Judicial Review.
Fact of the Case:
Three writ petitions were filed challenging detention orders issued under the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, on the grounds of vagueness and insufficiency of material relied upon by the detaining authority. The petitioners contended that they were not furnished with the grounds of detention and material relied upon, and that the impugned orders were not confirmed by the competent authority.
Finding of the Court:
The Court held that the detaining authority had complied with the procedural requirements under the Act and the Constitution, including providing the petitioners with the grounds of detention and material relied upon, executing detention warrants, and obtaining the opinion of the Advisory Board. The Court further held that the grounds of detention were definite, proximate, and free from ambiguity, and that the detaining authority had sufficient material to arrive at a subjective satisfaction that the petitioners were required to be placed under preventive detention to prevent them from engaging in activities that posed a threat to the younger generation and school-going children.
Issues: 1. Whether the detaining authority had complied with the procedural requirements under the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, and the Constitution. 2. Whether the grounds of detention were vague and insufficient. 3. Whether the detaining authority had sufficient material to arrive at a subjective satisfaction that the petitioners were required to be placed under preventive detention.
Ratio Decidendi: 1. The detaining authority had complied with the procedural requirements under the Act and the Constitution, including providing the petitioners with the grounds of detention and material relied upon, executing detention warrants, and obtaining the opinion of the Advisory Board. 2. The grounds of detention were definite, proximate, and free from ambiguity, and the detaining authority had sufficient material to arrive at a subjective satisfaction that the petitioners were required to be placed under preventive detention to prevent them from engaging in activities that posed a threat to the younger generation and school-going children.
Final Decision: The Court dismissed the writ petitions, holding that the detention orders were valid and that the petitioners were not entitled to relief.
Judgment
Tashi Rabstan, J.—Considering submission of learned counsels for petitioners that instant writ petitions relate to same subject-matter inasmuch as impugned detention orders emerge from same FIR and detenus had been arrested in connection with same FIR and on same date, this Court by orders dated 17th August 2020 and 27th August 2020, directed their clubbing and consequently heard and reserved them on 8th October 2020.
2. In writ petition, bearing WP(Crl) no.645/2020, challenge is thrown to Detention Order no.DIVCOM-”K”/101/2019 dated 14th November 2019, (for short “detention order no.1”), issued by Divisional Commissioner, Kashmir – respondent no.2 (for brevity “detaining authority”), placing Javid Ahmad Mir son of Mohammad Akber Mir son-in-law of Ghulam Nabi Bhat resident of Larkipora, Padgampora, Awantipora District Pulwama (for short hereinafter called as “detenu no.1”) under preventive detention, with a view to preventing him from committing any of the acts within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
2.1. Similarly, in second writ petition, being WP(Crl) no.646/2019, Detention Order no. DIVCOM-”K”/102/2019 dated 14th November 2019 (for brief “detention order no.2”), placing Mohammad Amin Bhat son of Ghulam Mohammad Bhat resident of Larkipora Padgampora Tehsil Awantipora District Pulwama, (for succinctness hereinafter referred as “detenu no.2”) is assailed on the grounds tailored therein.
2.2. And in third writ petition, diarised and registered as WP(Crl) no.649/2020, Detention Order no. DIVCOM-”K”/103/2019 dated 14th November 2019 (for short detention order no.3), issued by Divisional Commissioner, Kashmir – respondent no.2, by which Tasaduq Shafi Sheikh Alias Sanju son of Late Mohammad Shafi Sheikh resident of Kathi Darwaza, Mohalla Mum Khan, Rainawari, Srinagar District Srinagar (for brevity “detenu no.3”) is under challenge.
3. Reply in all the three writ petitions has been filed by respondent no.2.
4. I have heard learned counsel for parties and considered the matter. I have gone through the detention record made available by learned counsel for respondents.
5. Prior to adverting to case in hand, it would be apt to say that right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down, in Maneka Gandhi v. Union of India, 1978 AIR SC 597, is to be just and fair. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such a person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence.
5.1. It is to be seen that framers of the Constitution of India have incorporated Article 22 in the Constitution of India, aiming at leaving room for placing a person under preventive detention without a formal charge and trial and without such a person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object is to save society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case, it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person, having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is
