Jammu & Kashmir High Court
Chirag Attri vs U T Of J&K & Others on 7 May, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 88/2024
Pronounced on: 07.05.2025
Chirag Attri .... Petitioner/Appellant(s)
Through:- Mr. Anmol Sharma, Advocate
V/s
U T of J&K & others .....Respondent(s)
Through:- Mrs. Monika Kohli, Sr.AAG.
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. Through the medium of this petition, the petitioner-Chirag Attri @ Chetan has challenged his detention order No. PITNDPS 15 of 2024 dated 07.02.2024, issued by respondent No.2, Divisional Commissioner, Jammu passed under Section 03 of the Prevention of Illicit Traffic in Narcotic Drugs & Psychotropic Substance Act-1988 read with SRO 247 dated 27.7.1988 (hereinafter to be referred as the „Act‟).
02. The detention order was passed by the detaining authority against the petitioner as he is engaged in repeated Illicit Traffic of Narcotic Drugs and Psychotropic Substances case which poses a serious threat to the health and welfare of the people, as such, in order to prevent him from committing any of the acts within the meaning of illicit traffic, it is necessary to detain the petitioner on the basis of the grounds of detention.
03. The petitioner has challenged the legality and validity of the impugned detention order on the following grounds: - HCP No.88/2024 Page 2 of 6
a) That the order of detention of the petitioner is unconstitutional, illegal and bad in law as the same has been passed in breach of the mandate of law as prescribed by Hon‟ble Supreme Court of India and this court also, therefore, the same deserves to be quashed.
b) That the detaining authority has not followed the constitutional and statutory procedural safeguards as provided under article 22(5) of the Constitution of India and provisions of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 read with SRO 247 dated 27-07-1988.
c) That the allegations in the detention order are based on the alleged previous false FIR‟s registered against the petitioner which cannot be sufficient for issuing the said impugned order, considering the fact that the said incident has no live nexus with the present impugned order, as such, there is a breach of the procedural safeguards as provided under Article 22 (5) of the Constitution of India due to which the petitioner has been debarred from making an effective and purposeful representation to the detaining authority and Government against the impugned order of detention.
d) That the order of grounds of detention which is the basis of the order detention does not disclose any eminent threat to the health and welfare of people as the allegation leveled against the petitioner are purely criminal in nature and HCP No.88/2024 Page 3 of 6 adjudication of same are pending before the competent court of law.
e) That the detaining authority has not applied its mind while passing the order of detention as it is passed on the basis of wrong grounds mentioned in the dossier placed before it by the SSP Jammu i.e respondent No. 4.
04. It is urged on behalf of the petitioner that it is incumbent on the State to satisfy the Court that the order of detention is legal and in conformity with the mandatory provisions and strictly in accordance with constitutional safeguards as provided in Article 22 (c) of the Constitution of India.
05. Mrs. Monika Kohli,, learned Sr. AAG, has filed the counter affidavit as well as produced the relevant record.
06. The respondents in the counter submit that the impugned order is legal and in consonance with the law. The impugned order of detention does not suffer from any legal infirmity, so as to warrant the interference of this court in terms of its extraordinary writ jurisdiction under Article 226 of the Constitution of India, as the dossier in respect of the petitioner vide No.CRB/2024/Dossier/22/DPOJ dated 01.02.2024 was submitted by the SSP, Jammu to the answering respondent No. 2 and after carefully examining the dossier and the relevant records attached with it, it was found imperative to detain the petitioner under the relevant provisions of PITNDPS Act.
07. It is further submitted by the respondents that all the statutory requirements and constitutional guarantees have been fulfilled and HCP No.88/2024 Page 4 of 6 complied with by the Detaining Authority. The impugned order issued is legal and valid and the learned counsel for the respondents has further submitted that the grounds urged in this petition by the petitioner are misconceived and untenable being without any merit.
08. Heard learned counsel for the parties at length and also perused the record.
09. The Divisional Commissioner, Jammu, ordered the detention of the petitioner after relying on the dossier submitted by the SSP, Kathua, on the grounds of continuous and repeated involvement of petitioner in criminal activities as well as narcotic substance cases, which have remained unchecked. There was every likelihood that he would expand his illegal trade to other areas, thereby spoiling the youth of the region and creating law and order problems. The Detaining Authority also recorded its satisfaction that the ordinary law of land has failed to deter the petitioner from engaging in illegal trafficking, therefore, it was imperative to detain him.
10. The right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures as established under law and the procedure as laid down in "Maneka Gandhi vs. Union of India", 1978 AIR SC 597, is to be just and fair. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Article 22(5) of the Constitution of India, provided for HCP No.88/2024 Page 5 of 6 detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object are to save society from activities that are likely to deprive a large number of people of their right to life and personal liberty.
11. Learned counsel for the petitioner has raised the contention that though the detention order was issued on 07.02.2024, but the same was executed on 26.05.2024, after a delay of more than three and a half months. There is no explanation put forth for the delay in execution of detention warrant. The petitioner has stated that he was available and this fact has not been rebutted.
12. In "A. Mohammed Farook vs. Jt. Secy. To G.O.I. and ors", (2000) 2 SCC 360, the Hon‟ble Apex court has held that:
"The only contention before the Court was that of delay in executing the order of detention. In that case, the detention order was passed on 25.02.1999 but the authorities have chosen to execute the detention order only on 06.04.1999 after an inordinate and unreasonable delay of nearly 40 days. In the absence of proper and acceptable reasons for the delay of 40 days in executing the detention order, this Court concluded that the subjective satisfaction of the Detaining Authority in issuing the detention order dated 25.02.1999 gets vitiated and on this ground quashed the same."
13. Similar view has been expressed in "K.P. M. Basheer V. State of Karnataka and another", AIR 1992 SC 1353, the Hon‟ble Apex court has held that:
"...Under these circumstances, we are of the view that the order of detention cannot be sustained since the „live and proximate link‟ between the grounds of detention and the purpose of detention is snapped on account of the undue HCP No.88/2024 Page 6 of 6 and unreasonable delay in security the appellant/petitioner and detaining him..."
14. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. Accordingly, this petition is allowed and the Detention Order No. PITNDPS 15 of 2024 dated 07.02.2024, passed by the Divisional Commissioner, Jammu, under which the petitioner-Chirag Attri @ Chetan, S/o Late Ved Ram, R/o Chak Jaralan, Tehsil Bishnah, District Jammu, is under detention, is quashed. The respondents are directed to release the petitioner from the custody forthwith, provided he is not required in any other case.
15. Detention record be returned to the learned counsel for the respondents by the Registry forthwith.
(Sindhu Sharma) Judge JAMMU Ved-Secy.
07.05.2025
Whether the judgment is speaking : Yes/No
Whether the judgment is reportable : Yes/No