The importance of subjective satisfaction in detention matters and the limitations of judicial review.

JUDGMENT :

1. Impugned in this petition, filed for issuance of a writ in the nature of habeas corpus, is an order of detention bearing No.PITNDPS-49 of 2023 dated 12.10.2023 [“impugned detention order?] passed by the Divisional Commissioner, Jammu [“the Detaining Authority”] whereby the petitioner has been placed under detention with a view to preventing her from indulging in repeated “illicit trafficking” in narcotics and psychotropic substances.

2. The impugned order of detention has been passed by the Detaining Authority in the exercise of power vested in it under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 [“the PITNDPS Act”]. The detention of the petitioner is ordered primarily on the ground that she has been, over the time, consistently engaged in illicit traffic in narcotic drugs and psychotropic substances, in that, three FIRs i.e. (i) FIR No.364/2020 under 8/21/22 NDPS Act, (ii) FIR No.119/2022 under Section 8/21/22 NDPS Act, and (iii) FIR No.381/2023 under Section 8/21/22 NDPS Act stand registered in Police Station, Kathua and final reports in respect thereto have been submitted before the competent court of law after investigation.

3. On the basis of relevant material supplied by the District Police, the Detaining Authority arrived at subjective satisfaction that the petitioner is an incorrigible drug peddler and has been engaged in illicit trade of narcotics since the year 2020. She has been caught thrice in possession of illicit drugs and accordingly, FIRs were registered in the concerned Police Station. The Detaining Authority was aware that the petitioner has been enlarged on bail in all the three cases registered against her but was of the opinion that in case the petitioner is allowed to remain at large and her illicit activities remain unchecked there is every likelihood that the petitioner would expand her illegal trade to other areas of the Union Territory and spoil the life of the youth of the area. It is on the basis of this satisfaction drawn by the Detaining Authority, impugned detention order was passed and the petitioner was taken into preventive custody of the State.

4. The petitioner is aggrieved and has assailed the impugned order of detention, inter alia, on the following grounds:-

i) That the detention of the petitioner ordered by the Detaining Authority is dehors the procedure laid down in PITNDPS and in violation of the constitutional safeguards available to a detenue.

ii) That there is lack of application of mind by the Detaining Authority, in that, the Detaining Authority has not appreciated that the petitioner, though, involved in three FIRs for the commission of offence under NDPS Act was granted bail by the competent court of law despite the rigors of Section 37 of NDPS Act. The State was not aggrieved by the release of the petitioner on bail and because of this reason chose not to seek either cancellation of the bail or challenge the same before higher forum. Non-application of mind by the Detaining Authority to the relevant material vitiates the subjective satisfaction and consequently the order of detention.

iii) That the Detaining Authority did not provide adequate opportunity to the petitioner to make an effective representation. The communication of the Detaining Authority informing the petitioner of his right of making representation does not indicate the timeline within which such representation could have been made. This action on part of the Detaining Authority, it is submitted, violates the fundamental right guaranteed to the detenue under Article 22(5) of the Constitution of India making the impugned order of detention liable to be quashed.

iv) That the Detaining Authority has also failed to take into consideration the fact that the petitioner was, though, involved in three different cases of illicit traffic of Narcotic Drugs and Psychotropic Substances, yet, the substantive law had adequately taken its course. Not only the pet