The central legal point established in the judgment is the importance of providing the detenue with all the material on which the detention order was based to enable them to make an effective representation, as required by Article 22(5) of the Constitution of India.

JUDGEMENT

1. Petitioner 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') read with [1]SRO 247, dated 27.07.1988 in terms of the order of detention bearing No. PITNDPS 13 of 2022, dated 17.09.2022 (for short 'the impugned order).

2. The order of detention is challenged by the petitioner (hereinafter called detenue) through the medium of this petition on the following grounds:-

i. That the detaining authority, respondent No. 2 had given reference of FIRs bearing No. 292/2016, 279/2018, 266/2021, 468/2021 of Police Station Udhampur and One DDR No. 10.09.2022 of Police Post Ropun Domail, Udhampur in a very casual manner in the grounds of detention and come to the conclusion that the petitioner is a drug peddler. There is no mention with regard to the status of the aforementioned FIRs registered against the detenue and it is also not mentioned by the detaining authority in the grounds of detention that bail in the aforementioned FIRs was granted to the petitioner or not. As a matter of fact the petitioner stands already bailed out in the aforementioned false FIRs and the respondent No. 2 is silent on this aspect as to why detenue is required to be detained despite bail(s) granted by the Court.

ii. That the respondent No. 2 (Detaining Authority) had not mentioned the period of which the petitioner has been detained. The bare perusal of the impugned detention order shows that petitioner has been detained forever; therefore the detention order is without application of mind and according to the settled law, this type of lapse is a criminal negligence. Further the case of the detenu was never referred to the Advisory Board and this illegality is enough to set aside the detention of the petitioner.

iii. That, the grounds of detention have been prepared on the basis of police dossier and the detaining authority has not applied its mind while passing the detention order and the detention order is replica of the dossier, as such, on this count the order of detention is bad in law and deserves to be set aside.

iv. The detenue was never supplied with the copies of FIRs, Recovery memos, statements if any, recorded under section 161 Cr.P.C. and other relevant material collected by the police during investigation in the aforementioned FIRs and DDR report on the basis of which the impugned detention order has been passed and in view of this the impugned order is liable to be set aside.

v. That the detenue is semi literate, while as the order of detention is in hyper technical language and same is beyond the knowledge of the detenue, the detention order has neither been read over to the detenue in the language which he understands nor the translated script was furnished to him.

vi. That, even otherwise also the alleged recovery from the detenue does not fall in the category of commercial quantity but the detenue was booked under NDPS Act and has not even applied for bail and there was no justification for passing the detention order.

vii. That, as per the detention order it is stated that the detenue was providing drugs with an established network of drug peddlers in District Udhampur but no instances have been provided to when he has provided the drugs nor he has been provided with the copies of FIRs and in absence of such material including the statements recorded under section 161 Cr.P.C., recovery of illicit trafficking of narcotic substances and in absence of such a material the detenue could not make an effective representation and as such the detention order is bad in law and deserves to be set aside.

viii. That, to the knowledge of the detenue the detention order has not been executed as per the provisions of Public Safety Act and the detenue has not been asked to make a representation against his detention order, as such, on this count also the detention order is bad in law and deserves to be set aside.

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