The detention order under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 can be quashed if it is found to be vitiated by non-application of mind, non-consideration of relevant material, and unreasonable delay in execution.

JUDGMENT :

1. Impugned in this petition filed by the petitioner through his mother is an order of detention No.PITNDPS-12 of 2023 dated 02.05.2023 passed by the Divisional Commissioner, Jammu [“the Detaining Authority”] under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 [“the Act”], whereby the petitioner has been placed under preventive detention with a view to prevent him from indulging in illicit trafficking in narcotic drugs and psychotropic substances.

2. The impugned detention is made upon subjective satisfaction arrived at by the Detaining Authority on the basis of material supplied by the District Police in the shape of dossier. The petitioner, as is apparent from the grounds of detention allegedly served upon him, is involved in three FIRs registered in the year 2022 and 2023 in the Police Station, Miran Sahib under different Sections of the Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act”]. It is on the basis of these FIRs and some DDRs submitted by the District Police, the Detaining Authority arrived at its subjective satisfaction that the repeated involvement of the petitioner in illicit drug trafficking is a serious threat to the society in general and health and welfare of the youth of the UT of Jammu & Kashmir and District Jammu, in particular.

3. The impugned detention order is assailed by the petitioner on multiple grounds. The grounds of challenge, which were emphasized by the learned counsel for the petitioner during the course of arguments, can be summed up in the following manner:-

(i) The detention order was passed on 2nd May, 2023 but the same was executed on 23rd June, 2023 and, therefore, there has been inordinate and unexplained delay in execution of the detention order, more particularly, when the petitioner was already in judicial custody since 13th March, 2023.

(ii) The impugned order of detention suffers from total non-application of mind by the Detaining Authority, in that, the Detaining Authority has nowhere in the grounds of detention shown its awareness with regard to the petitioner being already in judicial custody nor has the Detaining Authority given any reason or justification necessitating passing of the detention order while the petitioner was already in custody of the State.

4. The Detaining Authority has filed counter affidavit wherein the Detaining Authority while relying upon a judgment of the Supreme Court in the case of Hardhan Saha v. State of West Bengal, (1975) 3 SCC 198 has submitted that the preventive detention and prosecution are not synergies and the purpose of two are different. The power of preventive detention is a preventive measure and is exercised in reasonable anticipation but it may or may not relate to an offence.

5. With a view to justify the detention of the petitioner, who, as per the Detaining Authority, is an incorrigible drug peddler and a serious threat to the health and welfare of the youth of District Jammu, it is submitted that the subjective satisfaction was arrived on the basis of cogent relevant material in relation to the activities of the petitioner provided by the district police. The averments made in the petition with regard to the non-compliance of the mandatory requirements of law have been sought to be met by placing reliance on the record of detention.

6. Having heard learned counsel for the parties and perused the material on record, I am of the considered opinion that the impugned detention order does not survive for more than one reason.

7. Indisputably, there is enough material on record to show that from the year 2022 the petitioner has been consistently indulging in illicit drug trafficking of Narcotics and Psychotropic Substances and has been booked thrice in various offences under the NDPS Act. With reference to an occurrence dated 08.10.2022, about 4.5 gms of heroin like substance was recovered from the petitioner and FIR No.127/2022 was registered in Police Station, Mir