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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Rajesh Sekhri, J.
Iqbal Jaffer Dar - Appellant
Vs.
Union Territory of J&K & Ors. - Respondent
WP(Crl) No. 52 of 2022 (O&M)
Decided On : 23-11-2022
Habeas Corpus - Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 - Section 3 - [8/22 of NDPS Act, 1985, 8/21 of NDPS Act, 1985, PITNDPS Act, 1988] - The court discussed the legality of the detention order passed under the PITNDPS Act, 1988 and its compliance with constitutional requirements. It also considered the grounds of detention, procedural irregularities, and the sufficiency of ordinary criminal law to deal with the detenue's activities. Key legal provisions such as Article 21 of the Constitution, the distinction between law and order and public order, and the requirement for compelling reasons for preventive detention were highlighted in the court's decision.
Fact of the Case:
The petitioner challenged the detention order passed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act) on the grounds of bail in related FIRs, procedural irregularities, and the sufficiency of ordinary law to address the detenue's activities. The respondent-detaining authority defended the detention order, citing the detenue's involvement in illegal drug trade and its impact on the youth and society.
Finding of the Court:
The court found that the detention order was passed in compliance with the constitutional and procedural requirements. However, it concluded that the detenue's past activities did not justify preventive detention under the PITNDPS Act, 1988, and there were no compelling reasons for the detaining authority to pass the impugned detention order. As a result, the court quashed the detention order and directed the detenue's release, provided he was not involved in any other case.
Issues: The issues revolved around the legality of the detention order, procedural irregularities, sufficiency of ordinary law, and the detenue's continuous involvement in felonious activities.
Ratio Decidendi: The court emphasized the requirement for compelling reasons for preventive detention, the distinction between law and order and public order, and the need for continuous involvement in similar activities to justify a detention order. It also highlighted the importance of complying with procedural safeguards and constitutional rights.
Final Decision: The court allowed the petition, quashed the detention order, and directed the detenue's release, subject to his non-involvement in any other case.
JUDGEMENT/ORDER :
1. Challenge in this petition has been thrown to the detention Order No. DIVCOM-"K7199/2022, dated 24.02.2022 passed by respondent No. 2 under section (3) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, PITNDPS Act), vide which, the detenue has been directed to be detained and lodged in Central Jail, Kot Bhalwal, Jammu for a period to be specified by the Government/Advisory Board.
2. The detenue, through his father, Sh. Mohd. Abdullah Dar, the petitioner, has invoked writ jurisdiction of this Court for the issuance of appropriate writ in the nature of Habeas Corpus for his production in the Court as also issuance of a writ of Certiorari for the quashment of detention order, impugned in the present petition.
3. The petitioner has questioned the impugned detention order primarily on two grounds that detenue has been bailed out in both the FIRs viz. FIR No. 323 of 2020 under sections 8/22 of The Narcotics Drug and Psychotropic Substances Act, 1985 (for short, NDPS Act) and FIR No. 388 of 2021 under sections 8/21 of the NDPS Act, on the basis of which, impugned detention order has been passed against him and that the respondent-detaining authority has not reflected any compelling circumstance or immediate necessity or apprehension which prompted it to detain the detenue under the preventive detention law.
4. Besides, the petitioner has challenged the impugned order on the conventional grounds that unspecified period of detention renders the detention order illegal and violative of fundamental rights of the detenue; that since the communication was not made to detenue within five days or fifteen days as per mandate of Section (3) of the PITNDPS Act, therefore, respondent-detaining authority has failed to follow the procedure prescribed under law as also the constitutional requirement; that since the detaining authority has not referred the detention order to the Government/Advisory Board within a period of five weeks from the date of detention for confirmation, therefore, the impugned detention order is not sustainable in the eyes of law; that the grounds of detention are replica of dossier placed before the Divisional Commissioner by the Superintendent of Police, Kupwara except the replacement of word "Detenue with the subject" and therefore, impugned detention order has been passed with total non application of mind; that the allegations leveled against detenue are purely criminal in nature and detaining authority has failed to justify as to how ordinary law of the land is not sufficient to deal and deter the detenue from indulging in activities; that the relevant material including copies of FIR, dossier, statements of prosecution witnesses under section 161 of Cr.P.C., FSL report and other material referred and considered by the detaining authority was not supplied to detenue, therefore, he was not able to make effective and purposeful representation against his detention; and finally, that detenue has studied upto 9th standard and the grounds of detention were couched in a hyper technical language which was beyond his comprehension and the detaining authority was under legal obligation to furnish the grounds of detention to the detenue in his local language to enable him to make an effective and purposeful representation.
5. Countervailing the stand taken by the petitioner, the respondent-detaining authority in its counter affidavit is affront with the contention that the impugned detention order has been passed strictly in terms of Section 3 of the PITNDPS Act with a view to prevent the detenue from indulging in illegal trade of illicit traffic in Narcotic Drugs And Psychotropic Substances.
6. It has been urged that J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 has been repealed in terms of J&K Re-organization Act, 2019, as such, impugned detention order has been passed under the corresponding Central Act i.e. Preventi
The main legal point established in the judgment is the requirement for compelling reasons to justify preventive detention under the PITNDPS Act, 1988, and the importance of complying with procedural....
Detention order – Justified - Cases registered under the NDPS Act - Drug-offender – Exclusion of two criminal cases registered for the offences punishable under Section 302 r/w 34 of IPC and Sections....
The detention order must be based on compelling reasons, and the detaining authority must supply all material forming the basis of the detention to enable effective representation. Failure to do so r....
The detention order was quashed due to vagueness in grounds and violation of constitutional rights under Article 22(5), alongside significant delays in execution.
Preventive detention – Making of an effective representation by a detenu is a very vital constitutional safeguard against preventive detention.
The right to personal liberty must be safeguarded, and any deprivation of liberty must be in accordance with the law, with a live and proximate link between the grounds of detention and the purpose o....
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