Preventive detention under the PITNDPS Act is valid if the detaining authority applies its mind and follows procedural safeguards, even if ordinary law has been previously invoked.

JUDGMENT :

Per Oswal, J.

1. The respondent No. 2 had invoked the provisions of section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the ‘PITNDPS Act’) for the purpose of detaining the appellant vide order of detention dated 10.08.2023 and being aggrieved of the same, the appellant preferred a writ petition bearing HCP No. 51/2023, thereby assailing the order of detention, which was dismissed by the learned Single Judge by virtue of judgment dated 28.03.2024.

2. The appellant through the medium of this intra court appeal has assailed the judgment dated 28.03.2024 of the learned Single Judge on the ground that the learned Single Judge has not taken note of following contentions raised by the appellant:

(i) that the appellant had never abused the concession of bail granted to the appellant in FIR No. 248/2021 of Police Station, Akhnoor and FIR No. 180/2023 of Police Station, Katra, as such, he could not have been detained under the provisions of Section 3 of the PITNDPS Act.

(ii) that the order indicates that the appellant has been detained under the PITNDPS Act but the sponsoring authority i.e. respondent No. 3 herein issued the order for executing the order under Section 8(1)(a) of the J&K Public Safety Act, 1978.

(iii) that the order passed by respondent No. 2 is the verbatim reproduction of the dossier in the form of recommendation made by respondent No. 3 to respondent No. 2-Detaining Authority for detaining the appellant under the PITNDPS Act.

(iv) that the material relied upon by the detaining authority for the purpose of issuing the order of detention was not provided to the detenue/appellant and no subjective satisfaction has been drawn by the respondent No. 2 while passing the order of detention.

(v) that the detention cannot be made substitute for ordinary law and it cannot absolve the Investigating Authority of its normal function of investigating the crime, as such, the accused cannot be kept in preventive custody without trial.

3. Mr. G. S. Thakur, learned counsel for the appellant vehemently argued that the order of detention is a classic example of non-application of mind as the same is a verbatim reproduction of the dossier submitted by respondent No. 3 to the Detaining Authority for detaining the appellant. He further contended that the material relied upon by the Detaining Authority was not provided to the appellant and was also not even explained to him in the language which he fully understands. It is also urged by Mr. Thakur that the case of the appellant was never sent to the Advisory Board and that is why the respondents have not placed the opinion of the Advisory Board on record.

4. Per contra, Mr. Amit Gupta, learned AAG vehemently argued that all the constitutional as well as statutory safeguards have been followed/complied with by the Detaining Authority not only while issuing the order of detention, but also at the time of executing the same. He has further submitted that merely respondent No. 3 while directing the execution of the order of detention, has mentioned that the order of detention has been issued under section 8(1)(a) of the J&K Public Safety Act, 1978 would not render the order of detention illegal, particularly when the detaining Authority has issued the order under the PITNDPS Act.

5. Heard and perused the record.

6. A perusal of the record reveals that the respondent No. 3 submitted a dossier to the respondent No. 2, thereby stating various illegal activities of the appellant and recommended the detention of the appellant under the PITNDPS Act. A perusal of the dossier reveals that the reference has been made to seven FIRs against the appellant spanning from the year 2011 till 2023 registered with different Police Stations of the Union Territory. Out of these seven FIRs, FIR No. 248/2021 dated 22.09.2021 was registered by Police Station, Akhnoor for offences under Sections 8/21/29 NDPS Act on the allegation that 12 grams of Heroin like s