Tanveer Ahmad Dar vs Govt. Of J&K & Ors
2021 Latest Caselaw 45 j&K/2

      IN THE HIGH COURT OF JAMMU AND KASHMIR
                    AT SRINAGAR

                                                 Reserved on: 28.01.2021
                                            Pronounced on: 04.02 .2021


                                                   WP(Crl.) No.116/2020


Tanveer Ahmad Dar                                         ...Petitioner(s)

             Through: - Mr. Shafqat Nazir, Advocate
Vs.

Govt. of J&K & Ors.                           ...Respondent(s)

             Through: - Ms. Saba Gulzar, Assistant Counsel, vice Mr.
                        B. A. Dar, Sr. AAG.

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1) Divisional Commissioner, Kashmir, in exercise of powers

conferred under Section 3 of the Jammu and Kashmir Prevention of

Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

(hereinafter referred to as "Act of 1988"), has, vide order

No.DIVCOM-"K"/118/2020 dated 11.02.2020, ordered detention of

Tanveer Ahmad Dar S/o Ghulam Hassan Dar R/o Reban Sopore

District Baramulla (hereinafter referred to as the detenue).

2) Petitioner has contended that the Detaining Authority has passed

the impugned detention order mechanically without application of

mind. It has been further contended that the Constitutional and

Statutory procedural safeguards have not been complied with in the

instant case. It has also been urged that the allegations made against the

detenue in the grounds of detention are vague and that the detenue has

been disabled from making an effective representation against his

detention because the material, on the basis of which detention order

has been passed, has not been provided to the detenue.

3) Despite availing a number of opportunities, the respondents have

neither chosen to file the counter affidavit nor have produced the

detention record.

4) I have heard learned counsel for parties and I have also gone

through detention record.

5) Learned counsel for the petitioner has highlighted various

grounds while seeking quashment of impugned order but the main

grounds on which stress has been laid during the course of arguments

are that there has been total non-application of mind while passing the

impugned, inasmuch as at the time of passing the detention order, the

detenue was already implicated in case FIR No.172/2019 for offence

under Section 8/20 of NDPS Act of P/S Sopore and that there were no

compelling reasons for the Detaining Authority to make the impugned

detention order and the Detaining Authority has not spelt out the

compelling reasons for detaining the detenue under preventive

detention laws; that the material on the basis of which impugned

detention order has been passed has not been supplied to the detenue

thereby disabling him from making an effective representation against

his detention.

6) It has been contended by learned counsel for the petitioner that

the Detaining Authority could not have passed a composite order of

detention on the ground of commission of acts within the meaning of

the Act of 1988 as well as for maintenance of public order. In order to

test the merit of this contention of learned counsel for the petitioner, we

need to understand the object and scope of Section 3 of the Act of

1988. The said provision provides that a detention order can be made

by the Government or any specially empowered officer of the

Government of a particular rank with a view to prevent him from

committing any of the acts within the meaning of "illicit traffic" as

defined in clause (c) of Section 2 of the Act, which reads as under:

(c) "Illicit traffic" means -

(i) cultivating any coca plant or gathering any portion of coca plant;

(ii) cultivating the opium, poppy or any cannabis plant;

(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import, inter-State, export inter-State or transshipment of narcotic drugs of psychotropic substances;

(iv) dealing in narcotic drugs or psychotropic substances otherwise than as provided in sub-clause (i) and (iii);

(v) handling or letting any premises for use for any of the purposes referred to in sub-clauses (i) to (iv);

(vi) financing any activity by himself or through any other person in furtherance or in support of doing any of the aforesaid acts'

(vii) harbouring persons engaged in any of the activities specified in sub-clauses (i) to (iv); or

(viii) abetting or conspiring in the furtherance or in support of doing any of the aforesaid acts;

except to the extent permitted under the Narcotic Drugs and psychotropic Substances Act, 1985, or any rule or order made, or any condition of any licence, permit or authorization issued thereunder."

7) In the instant case, the detaining authority has passed the order of

detention in the following terms:

"I am satisfied that in order to prevent Tanveer Ahmad Dar S/o Ghulam Hassan Dar R/o Reban Sopore District Baramulla from committing any of the acts within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 and for Maintenance of Public order, it is necessary to detain him."

8) Mention of the words "maintenance of public order" would

suggest that the detaining authority is not certain or has not been alive

to the legal position that under Section 3 of the "Act of 1988", a person

could not be detained for the acts prejudicial to the "maintenance of

public order" and that detention of a person can be ordered only for

prevention of commission of the acts mentioned in clause (c) of section

2 of the Act of 1988. The clause nowhere makes a mention of

"maintenance of public order". Thus, the impugned order of detention

smacks of non-application of mind on the part of detaining authority.

9) There is yet another circumstance which goes onto suggest

that there was total non-application on the part of the detaining

authority while passing the order of preventive detention against

the detenue The detenue in connection with FIR No.172/2019

registered by P/S Sopore for commission of offence under Section 8/20

of NDPS Act was taken into custody. Subsequently, the detenue was

admitted to bail by the Court of Additional Sessions Judge, Sopore, on

19.08.2019. However, in the grounds of detention it is no where

mentioned that the detenue has been admitted to bail in the aforesaid

criminal case. It means either the Detaining Authority has not applied

its mind or the full material relatable to the detenue had not been placed

before it. So the non-application of mind is explicit which renders the

order of detention illegal. In my view I am fortified by the judgment

rendered in the case captioned Anant Sakharam Raut Vs. State of

Maharashtra and others reported in AIR 1987 SC 137.

10) The assertion of the petitioner regarding non-supply of relevant

material has remained unrebutted in the absence of any counter or

record on behalf of the respondents.

11) Making of an effective representation by a detenue is a very vital

constitutional safeguard against the preventive detention. In the absence

of the material on the basis of which grounds of detention have been

formulated, the detenue has been rendered handicapped and hampered

in making an effective representation against the order of detention.

The violation of this vital safeguard by the respondents renders the

impugned order of detention unsustainable in law. I am supported in

my aforesaid view by the judgment of the Supreme Court in Ibrahim

Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad

Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others",

(1982) 3 SCC 440.

12) Another ground that has been urged by learned counsel for the

petitioner during the course of argument is that there were no

compelling reasons for the detaining authority to pass the order of

detention against the petitioner because he was already implicated in

connection with case FIR No.172/2019 of P/S Sopore. In this regard it

may be noted that preventive detention orders can be passed even when

a person is in police custody or involved in a criminal case but for

doing so, there must be compelling reasons for the detaining authority

to do so. The Detaining Authority is bound to record the compelling

reasons as to why the detenue could not be deterred from indulging in

subversive activities by resorting to normal law and in the absence of

these reasons, the order of detention becomes unsustainable in law. I

am supported in my aforesaid view by the judgment of the Supreme

Court in the case of Surya Prakash Sharma v. State of U. P. and

others, 1994 SCC (Cri) 1691.

13) The following observations of the of Supreme Court in T. P.

Moideen Koya vs. Government of Kerala and ors." reported in 2004

(8) SCC 106, are also relevant to the context and the same are

reproduced as under:

"......in law there is no bar in passing a detention order even against a person who is already in custody in respect of a criminal offence if the detaining authority is subjectively satisfied that detention order should be passed and that there must be cogent material before the authority passing the detention order for inferring that the detenue was likely to be released on bail"

14) Further the Supreme Court in Sama Aruna v. State of

Telangana & Anr (AIR 2017 SC 2662, while considering the question

whether an order of detention could be passed in the face of the fact

that the detenue was already in custody in a substantive offence,

observed as under:

"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows:

"6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed."

15) From the discussion of the aforesaid law on the subject, it is clear

that though a person who is already booked in a criminal case can be

taken into preventive custody yet for doing so, there must be

compelling reasons.

16) Coming to the instant case, the detention record shows that the

detenue was arrested in FIR No.172/2019 for offence under Section

8/20 of P/S Sopore. So far as the grounds of detention are concerned,

the same are based upon the solitary incident which is the subject

matter of aforesaid FIR. There was no material on record excepting the

allegations made in the afore-noted FIR before the Detaining Authority

which would have compelled it to pass the impugned detention order

against the petitioner who was already booked for commission of a

substantive offence.

17) For the afore-stated reasons, the petition is allowed and the order

of detention bearing No. DIVCOM-"K"/118/2020 dated 11.02.2020,

issued by the Divisional Commissioner, Kashmir, is quashed. Detenue

is directed to be released from the preventive custody provided he is

not required in connection with any other case.

(Sanjay Dhar) Judge Srinagar

04. 02.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:        Yes/No
                                           Whether the order is reportable:      Yes/No




SANJEEV KUMAR UPPAL
2021.02.05 01:08
I attest to the accuracy and
integrity of this document