Procedural Flaws Including Wrong FIR Reference, Improper Advisory Board Vitiate PITNDPS Detention: J&K&L High Court - 2024-03-19

J&K&L High Court Quashes PITNDPS Detention Citing Multiple Procedural Irregularities

Srinagar: The High Court of Jammu & Kashmir and Ladakh has ordered the immediate release of a man detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act), finding his preventive detention vitiated by a series of procedural flaws, including the reference to a wrong First Information Report (FIR) and the non-application of mind by detaining authorities.

Justice RahulBharti , presiding over a Habeas Corpus petition (HCP 72/2023) filed by the detainee Abdul Qayoom Ganaie through his wife, critically examined the detention order issued by the Divisional Commissioner, Kashmir. The court found the detention order, dated July 4, 2023, unsustainable due to significant errors in its foundation and execution.

The case stemmed from a dossier submitted by the Senior Superintendent of Police (SSP), Baramulla, recommending Ganaie 's preventive detention. The dossier alleged his involvement in an organized drug-trafficking gang and expressed apprehension that he might obtain bail in a criminal case and resume his illicit activities.

However, the court identified a fundamental error: both the SSP's dossier and the Divisional Commissioner's grounds of detention repeatedly referred to FIR No. 35/2023 of Police Station Boniyar as the basis for Ganaie 's alleged involvement. The court's perusal of the detention record revealed that the FIR accompanying the dossier was actually FIR No. 33/2023, in which Ganaie was indeed implicated.

"The mere fact that an FIR which is in no manner related to the petitioner is being ascribed against him in the dossier by the SSP, Baramulla and also by the respondent No. 2 – Divisional Commissioner, Kashmir in the grounds of detention, is a pointer to the fact that the dossier making as well as the grounds of detention formulation exercise at the end of the two officials was done with a mechanical mindset," the court observed.

The judgment highlighted that this was not a mere typographical error, as the detention order execution report indicated that the detaining officer read out the grounds, including the reference to FIR No. 35/2023, to the petitioner, leaving him confused about the actual case against him.

Furthermore, the court found fault with the Advisory Board's opinion, noting that the Board identified itself as acting under the "Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988." The court held that this state act had been repealed, rendering the Board's purported opinion "non-est in the eyes of law" and further vitiating the detention.

Another significant procedural lapse pointed out by the court was the failure to conclude and communicate the fate of the petitioner's representation against his detention. The record showed the representation was forwarded through various official channels but its outcome remained unknown, violating the detainee's fundamental right to have his representation considered and replied to.

The court also noted an unexplained delay of over one month between the submission of the dossier (May 20, 2023) and the passing of the detention order (July 4, 2023). Crucially, during this intervening period, the petitioner had applied for and was granted bail by the Ist Additional Sessions Judge, Baramulla on June 13, 2023. The court found that this fact was either unknown to the authorities or not considered, and the delay in passing the detention order, especially after the grant of bail, weakened the subjective satisfaction required for preventive detention.

Citing the cumulative effect of these procedural irregularities, Justice Bharti concluded that the petitioner's detention was illegal and liable to be quashed.

In its order dated March 19, 2024, the High Court set aside the detention order No. DIVCOM- “K”/90/2023 dated 04.07.2023 and subsequent confirmation orders. The court directed the immediate release of Abdul Qayoom Ganaie from preventive detention custody, instructing the Divisional Commissioner, Kashmir and the Superintendent of Central Jail, Kot Bhalwal, Jammu to comply with the writ.

The judgment underscores the strict adherence to procedural safeguards required under preventive detention laws and the necessity for detaining authorities to apply their mind diligently to the facts and circumstances of each case.