The right of a person subjected to preventive detention to make a representation against the detention order to the authority passing the order, as mandated by Article 22(5) of the Constitution of India and the Kamleshkumar Ishwardas Patel case.

JUDGMENT :

RAHUL BHARTI, J.

1. The preventive detention jurisdiction is loaded with a very heavy onus resting not only upon the law enforcement authority which intends to seek preventive detention of a person under a given law but also upon the authorities vested with the jurisdiction to consider and pass a preventive detention order to denude a person of his fundamental right to personal liberty guaranteed under Article 21 of the Constitution of India. Any omission of said onus bears an inviting risk of nullifying of a preventive detention of a person detained.

2. The present case is one in which the preventive detention order making authority has fallen in omission to discharge the said onus by not bearing in mind the constitutional safeguards attending passing of a preventive detention order against the petitioner as envisaged by the constitution bench of the Hon’ble Supreme Court of India in the case of Kamleshkumar Ishwardas Patel vs. Union of India and Others, 1994 (4) SCC 51.

3. The petitioner is a 28 years old person who has come to question his preventive detention effected under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short “PITNDPS Act”).

4. The Senior Superintendent of Police, Jammu (in short SSP Jammu) came to lay a dossier before the Divisional Commissioner, Jammu vide communication no. CRB/Dossier/2022/22/DPOJ dated 27.10.2022 putting up a case for preventive detention of the petitioner.

5. In submitting said dossier against the petitioner, the SSP, Jammu came to brand the petitioner as a part of vicious network of drug traffickers and dealers and who is involved in various drug trafficking cases. The petitioner was mentioned to be a desperate character, in close association with notorious criminals/drug peddlers of the area having a gang of criminals showing no respect for the law of the land and found involved in a number of cases registered against him. The petitioner was referred to be an evil design in the society who is upto destroying the life of the youth of the society by indulging in business of selling drugs to young generation after obtaining the same by illegal means.

6. For the purpose of pasting this character identification of the petitioner, the SSP, Jammu came to refer to three First Information Reports (FIRs) against the petitioner. Said FIRs being FIR no. 68/2018 under Section 8/21/22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “NDPS Act”) registered with Police Station, Gangyal, Jammu, FIR No. 139/2019 again under Section 8/21/22/27 of the NDPS Act registered with Police Station, Bishnah and FIR No. 250/2002 under Section 8/21/22 of the NDPS Act registered with Police Station, Gandhi Nagar, Jammu.

7. The dossier so submitted by the SSP, Jammu comprised of 49 leaves. In the said dossier with reference to the FIRs so mentioned, it came to be mentioned that in the first two FIRs, final police reports (challans), after the investigation, have been presented against the petitioner in the court of law whereas the third FIR being at the state of investigation. However, the quantity of the contraband (Heroine) allegedly recovered from the petitioner was missing in its mention in the said dossier with respect to all the three aforesaid FIRs.

8. In the said dossier, it is not spelled out by the SSP, Jammu as to whether the petitioner was under custody, judicial or police, or that he has been able to earn bail in his favour from the Court of law.

9. The Divisional Commissioner, Jammu, upon receiving the said dossier from the SSP, Jammu came to address a communication no. 601/RA/Dossier/4915 dated 02.11.2022 to the SSP, Jammu seeking the factual inputs about the aspect as to whether the petitioner was in judicial custody by reference to the police cases/police challans presented and under investigation against him or has been granted bail by the Court of law.

10. In response to the aforesaid communication of the Divisional Commissioner