The subjective satisfaction of the Detaining Authority under the PITNDPS Act is not immune from judicial reviewability, but can only be tested within certain parameters, such as total non-application of mind or reliance on extraneous or irrelevant material.

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-29 of 2023 dated 31.08.2023 [“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 him 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 he has been, over the time, consistently engaged in illicit traffic in narcotics drugs and psychotropic substances, in that, five FIRs i.e. (i) FIR No.96/2016 under Section 8/21/62 NDPS Act, (ii) FIR No.355/2019 under Section 8/21/22 NDPS Act, (iii) FIR No.39/2020 under Section 8/21/22 NDPS Act, (iv) FIR No. 471/2021 under Section 8/21/22 NDPS Act, and FIR No. 66/2023 under Sections 8/21/22/29 NDPS Act stand registered in Police Station, Reasi, Udhampur, Bagh-e-Bahu, Jammu and Police Station Janipur, Jammu 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 2016. He has been caught in possession of illicit drugs repeatedly and, accordingly, FIRs were registered in the concerned Police Stations. The Detaining Authority was aware that the petitioner has been enlarged on bail in all the five cases registered against him but was of the opinion that in case the petitioner is allowed to remain at large and his illicit activities remain unchecked there is every likelihood that the petitioner would expand his 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 de hors 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 five 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 petitioner was not provided with the requisite material relied upon by the respondent No.2 to draw subjective satisfaction as a result whereof the petitioner was deprived of his right to make an effective representation to the Government against his detention. 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 five different cases of illic