Rayees Ahmad Hakak vs Ut Of J&K & Others
2021 Latest Caselaw 501 j&K/2

                                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                                               AT SRINAGAR

                                             (THROUGH VIRTUAL MODE)

                                                                       Reserved on: 27.04.2021
                                                                     Pronounced on:01 .05.2021

                                                 WP(Crl) No.176/2020

                      RAYEES AHMAD HAKAK                                    ...PETITIONER(S)

                                           Through: - Mr. Ateeb Kanth, Advocate.

                      Vs.

                      UT OF J&K & OTHERS                                 ...RESPONDENT(S)

                                           Through: - Mr. B. A. Dar, Sr. AAG.

                      CORAM:         HON‟BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.


                                                         JUDGMENT

1) This petition for Habeas Corpus is filed by the petitioner through

his father, Fayaz Ahmad Hakak, seeking quashment of detention order

bearing No.DIVCOM-"K"133/2020 dated 19.05.2020 (the impugned

order) issued by Divisional Commissioner, Kashmir (the detaining

authority), whereby petitioner has been put under preventive detention

with a view to preventing him from committing any act within the

meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances

Act and for maintenance of public order.

2) Before adverting to the grounds of challenge taken by the

petitioner to assail the impugned order, it would be appropriate to briefly

state few background facts.

MOHAMMAD ALTAF BHAT 2021.05.01 12:04 I attest to the accuracy and integrity of this document

3) On the basis of communication of Senior Superintendent of

Police, Srinagar, issued vide his No.Lgl/Det-3222/20/5186-89 dated

28.04.2020, whereby some material including dossier and other

connected documents in respect of the petitioner was submitted to the

detaining authority, the detaining authority arrived at satisfaction that

with a view to preventing the petitioner from committing any act within

the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act and for maintenance of public order, it was necessary to

detain him and, accordingly, the impugned order of detention was

passed. The grounds of detention, claimed to have been served upon the

petitioner, indicate activities of the petitioners in some detail. As per the

grounds of detention, it is alleged that the petitioner is involved in illicit

trafficking of drugs and psychotropic substances. In the year 2018, he

was arrested by police during a Naka Checking and narcotic drugs were

recovered which, it is alleged, he was carrying to sell among youth of

area especially school going boys. Accordingly, a case FIR No.113/2018

under Section 20/22 of NDPS Act was registered against him in Police

Station, Nigeen, and later on petitioner was released from custody. It is

also claimed that as per the reports received from field agencies, the

petitioner is clandestinely dealing in illegal business of narcotics and in

order to carry out this illegal trade, he is exploiting the immature minds

of younger generation by making them dependent on drugs and is hell-

bent to spoil the life and career of younger generation by selling drugs to

them.

MOHAMMAD ALTAF BHAT 2021.05.01 12:04 I attest to the accuracy and integrity of this document

4) It is on the basis of aforesaid activities of the petitioner and his

involvement in the aforesaid FIR, the detaining authority has derived

satisfaction that it imperative to detain the petitioner under Section 3 of

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988.

5) The petitioner has challenged the impugned order of detention on

several grounds. The grounds of challenge which were pressed during

the course of arguments by learned counsel appearing for the petitioner

are as under:

(I) That the subjective satisfaction derived by the detaining

authority is vitiated for the reason that the detaining

authority has clubbed two different types of activities

allegedly attributable to the petitioner and it is not clear as

to whether the impugned order has been issued to prevent

the petitioner from indulging in illicit trafficking of drugs

and psychotropic substances or it is for maintenance of

public order;

(II) That at the time of passing of the order of detention, the

detenue was already in custody of State and had not even

applied for bail and, therefore, it was necessary for the

detaining authority to indicate the compelling circumstances

for passing the impugned detention order;

6) On being put on notice, the detaining authority has filed a detailed

MOHAMMAD ALTAF BHAT reply affidavit to justify the impugned order of detention. It is submitted 2021.05.01 12:04 I attest to the accuracy and integrity of this document

that the order of detention does not suffer from any malice or legal

infirmity, inasmuch as safeguards provided under the Constitution as

also the rights of the detenue have been adhered to while ordering his

detention. It is also submitted that the impugned order of detention is

based upon subjective satisfaction of the detaining authority and the

reasons that prevailed with it cannot be gone into by the Court. Placing

strong reliance on the judgment of the Supreme Court in the case of

Hardhan Saha vs. State of W.B, (1975) 3 SCC 198, it is submitted that

an order of preventive detention may be made with or without

prosecution and in anticipation or after discharge or even acquittal and

that the pendency of the prosecution is no bar to pass an order of

preventive detention.

7) Having heard learned counsel for the parties and perused the

record, I am of the considered view that the order of detention does not

survive the judicial scrutiny for more than one reason. From the grounds

of detention, it transpires that the opinion of the detaining authority

clearly oscillates between the activities of the detenue relating to illicit

trafficking of drugs and those having potential of disturbing public order.

FIR No.113/2018 and FIR No.02/2019, which find reference in the

grounds of detention, pertain to the offences under NDPS Act and,

therefore, if the petitioner was to be detained with a view to preventing

him from indulging in illicit trafficking of drugs, there is a separate

legislation in place i.e. the Jammu and Kashmir Prevention of Illicit

Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, which

MOHAMMAD ALTAF BHAT provides for preventive detention in such matters. Admittedly, the 2021.05.01 12:04 I attest to the accuracy and integrity of this document

detaining authority has not decided to proceed under the aforesaid Act

and may be it did not find sufficient material to derive subjective

satisfaction that the activities of the petitioner are such that unless he is

placed under preventive detention, it would not be possible to deter him

from indulging in the activities of illicit drug trafficking.

8) In the grounds of detention it is no where mentioned as to whether

in FIR No.02/2019, the petitioner was arrested or not. However, in the

counter affidavit, the detaining authority has stated that on 13.01.2019,

the petitioner was again arrested when he was found travelling along

with psychotropic substance and contraband material i.e. 500 „Rest

Cofe‟ bottles in Honda city vehicle bearing No.WB02W 8484 and,

accordingly, FIR No.02/2019 under Section 8/22 NDPS Act at Police

Station, Nigeen, was registered. From the aforesaid factual narration of

the detaining authority in its reply affidavit, it clearly transpires that at

the time detention order was passed, the detenue was already in custody

of respondents in FIR No.02/2019. The detaining authority has not

indicated any compelling reasons to justify the preventive detention of

the detenue when he was already in custody of the State for commission

of substantive offences under NDPS Act and had been formally booked

in FIR No.02/2019. It was thus incumbent upon the detaining authority

to disclose the compelling reasons for resorting to such action. If the idea

of issuing the detention order was to prevent the detenue from indulging

in illegal activities as aforesaid, that objective stood already achieved

with the arrest of detenue in connection with commission of substantive

MOHAMMAD ALTAF BHAT offences for which FIRs (supra) were registered in the year 2018 and 2021.05.01 12:04 I attest to the accuracy and integrity of this document

2019. In these circumstances, the detaining authority could not have

absolved itself of the responsibility to, at least, indicate the compelling

circumstances for taking such decision. In that view of the matter, the

detention of the detenue, when he was already in police custody, cannot

be said to have been made because of any undisclosed compelling

reasons and, therefore, cannot be justified in view of the law laid down

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

others, 1994 Supp (3) SCC 195, wherein Supreme Court while dealing

with a similar question held thus:

"5.The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this court since it state first came up for consideration before a Constitution Bench in Rameshwar Shaw vs District Magistrate Burdwan to eschew prolixity we refrain from detailing all those cases accept that of Dharmendra Sugan Chand Chelawat v. Union of India wherein a three judge Bench after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words:

"The decisions referred to above lead to the conclusion that an order for detection can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detailing authority was aware of the fact that the detenue is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression compelling reasons in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future and (b) taking into account the MOHAMMAD ALTAF BHAT nature of the antecedent activities of the detenue, 2021.05.01 12:04 I attest to the accuracy and integrity of this document

it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

6. When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authority‟s awareness of the fact that the detenu was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in the grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail "he may again indulge in serious offences causing threat to public order". (emphasis supplied) To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified.

7.On the conclusions as above we quash the order of detention."

9) For the foregoing reason, I find substance in this petition and the

same is, accordingly, is allowed. The impugned order of detention is

quashed. Direction is issued to the respondents to release the detenue

from the preventive custody forthwith, provided he is not required in

connection with any other case.

10) The detention record be returned back to the learned counsel for

the respondents.

(Sanjeev Kumar) Judge Srinagar 01.05.2021 "Bhat Altaf, PS"

                                         Whether the order is speaking:          Yes/No
MOHAMMAD ALTAF BHAT
2021.05.01 12:04
                                         Whether the order is reportable:        Yes/No
I attest to the accuracy and
integrity of this document