Jammu & Kashmir High Court

Rupesh Kumar vs Ut Of Jammu And Kashmir And Others on 17 October, 2022

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                                    WP(Crl) No.6/2022

                                             Reserved on: 27.09.2022
                                             Pronounced on: 17.10.2022.
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Rupesh Kumar

                                                                ..... petitioner (s)

                               Through :- Mr. Mayank Gupta Advocate

                     V/s
UT of Jammu and Kashmir and others                             .....Respondent(s)

                             Through :-
                                            Mr. Dewakar Sharma Dy.AG.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                JUDGEMENT

1 The petitioner (hereinafter referred to as the 'detenu') has

challenged order dated 28.06.2021 passed by the Divisional Commissioner,

Jammu ('Detaining Authority') whereby he has been taken into preventive

custody in terms of Section 3 of Prevention of Illicit Traffic in Narcotic Drugs

and Psychotropic Substances Act, 1988 (hereinafter referred to as 'PITNDPS

Act')

2 It is contended in the petition that the detenu has been taken into

preventive custody on the basis of vague, irrational and arbitrary grounds. It is

further stated that the detenu has not been furnished whole of the material on

the basis of which the impugned order of detention has been passed which has

prevented him from making an effective representation against the said order.

It has also been contended that the detenu has not been informed about his right

to make representation to the Advisory Board. The detenu has also contended

that there has been unreasonable and unexplained delay in execution of

impugned order of detention which renders the same unsustainable in law.

3 The respondents have filed a counter affidavit and resisted the petition

by pleading that the petitioner is a habitual drug peddler and smuggler who is

indulging in illicit traffic of narcotic drugs and psychotropic substances. It has

been contended that the detenu poses a serious threat to the lives of young

generation as well as to the economy of the country. It is further contended that

detenu is involved in as many as 4 FIRs for various offences under NDPS Act

in which he been granted bail and, as such, it was necessary to detain him to

prevent him from indulging in similar activities. It is further contended that the

petitioner was absconding and evading his arrest, as a result of which, the

warrant of detention could not be executed until 30.01.2022.

4 I have heard learned counsel for the parties and perused the record of the

case including the detention record produced by the respondents.

5 Although, a number of grounds have been urged by the detenu for

impugning the detention order, yet, learned counsel for the detenu has laid

much emphasis on the ground that there has been unreasonable delay in

execution of order of detention which renders the same unsustainable in law.

He has further contended that whole of the material relied upon by the

Detaining Authority while framing the grounds of detention has not been

supplied to the detnu which has prevented him from making an effective

representation against the impugned order of detention.

6 Regarding the first ground, it is to be noted that the impugned order of

detention has been passed on 28.06.2021 and admittedly, the same has been

executed on 30.01.2022 i.e after more than seven months of passing of the

order of detention. The explanation offered by the respondents is that detenu

was evading arrest and, as such, the order of detention could not be executed

until 30.01.2022.

7 Learned counsel for the detenu has submitted that mere bald assertion of

respondents that the order of detention could not be executed because the

detenu was evading arrest, would not be good enough to explain the delay in

execution of warrant of detention, unless it is shown as to what steps the

respondents had taken in effecting the execution of the warrant. Reliance has

been placed by learned counsel for the detenu in this regard on the judgment of

the Supreme Court in the case of P.M Hari Kumar vs. Union of India and

others, krishan vs Union of India (1995) 5 SCC 691. In the said case, the

Supreme Court, while dealing with the contention regarding delayed execution

of detention order, has observed as under:

"13. If the respondents were really sincere and anxious to serve the order of detention without any delay it was expected of them, in the fitness of things, to approach the High Court or, at least, the Court which initially granted the bail for its cancellation as, according to their own showing, the petitioner had violated the conditions imposed, and thereby enforce his appearance or production as the case might be. Surprisingly, however, no such steps were taken and instead thereof it is now claimed that a communication was sent to his residence which was returned undelivered. Apart from the fact that no such communication has been produced before us in support of such claim, it has not been stated that any follow up action was taken till 3.8.90 when Section 7 of the Act was invoked. Similarly inexplicable is the respondents' failure to insist upon the personal presence of the petitioner in the criminal case (C.C. No. 2/93) filed at the instance of the Custom Authorities, more so when the carriage of its proceeding was with them and the order of detention was passed at their instance. On the contrary, he was allowed to remain absent, which necessarily raises the inference that the Customs Authorities did not oppose his prayer, much less bring to the notice of the Court about the order of detention passed against the detenu".

8 Coming to the facts of the instant case, as per the grounds of

detention, the detenu is involved in FIR No. 228/2020, FIR No. 251/2020, FIR

No. 381/2020 and FIR No. 164/2021 of Police Station Kathua and all these

FIRs relate to offences under Sections 8/21/22 of NDPS Act. The detenu has

been granted bail in all these FIRs. There is nothing on record to even remotely

suggest that the respondents had taken any steps for cancellation of bail of

petitioner in these FIRs or for effecting his arrest. At least the record produced

does not suggest so.

9 Section 8 of PITNDPS Act relates to powers pertaining to

absconding persons. It reads as under:

8. Powers in relation to absconding persons.--

(1) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may--

(a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate;

(b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of sub-section (1) shall be cognizable.

10 From a perusal of the aforesaid provision, it is clear that if a

person, in respect of whom a detention order has been made, has absconded or

is concealing himself so that the order cannot be executed, the Government has

to make a report in writing to the Magistrate concerned, where said person

ordinarily resides, whereafter action, in terms of Sections 82 to 85 of Cr.PC has

to follow and an order has to be notified in the official gazette directing said

person to appear before a specified officer at a specified place. Nothing of the

said nature seems to have been done by the respondents in the instant case

which clearly shows that their assertion that the detenu was absconding or

concealing himself to avoid his arrest, is without any substance. Apart from

this, the detenu has placed on record a certified copy of order dated 24.11.2021

passed by the Principal Sessions Judge Kathua in one of the cases in which the

challan has been produced against the detenu. As per the said order, the

presence of the detenu in Court is recorded which goes on to show that the

detenu was appearing before the Court during the period when the respondents

claim that he was abscondeing. Thus, it cannot be stated that the warrant of

detention could not be executed upon the detenu because he was either

absconding or concealing himself to avoid his arrest.

11 Once, it is shown that there was unexplained delay in execution of

warrant of detention which, in the instant case, is more than seven months,

there is a reasonable ground to think that the delay in execution of the detention

warrant was occasioned by the respondents deliberately and such a delay

throws a serious and considerable doubt on the genuineness of subjective

satisfaction of the Detaining Authority leading to legitimate inference that the

detaining authority was not really and genuinely satisfied about the necessity of

detaining the detenu with a view to prevent him from acting in any prejudicial

manner. That being so, the detention order is rendered illegal.

12 It has been next contended by learned counsel for the detenu that

the detenu has not been provided whole of the material on the basis of which

the grounds of detention have been formulated, which has prevented the detenu

from making an effective representation against the impugned detention order.

13 If we have a look at the grounds of detention, it bears reference to

four FIRs. FIR No. 228/2020, FIR No. 251/2020, FIR No. 381/2020 and FIR

No. 164/2021 of Police Station Kathua. As per the police dossier, FIR

No. 228/2020, FIR No. 251/2020 and FIR No. 164/2021 are under

investigation, whereas challan is stated to have been filed in FIR No. 381/2020.

As per the execution report, which is available in the detention record, the

detenu has been provided the following documents:

(i). Detention order (two leaves);

(ii) Grounds of detention (three leaves);

(iii) Dossier of detention )15 leaves);

Total 2(0 leaves)

14 The execution report bears the signatures of the detenu. Thus, it is

shown that (20) leaves, particulars whereof are given hereinabove, have been

received by the detenu. The particulars of documents which have been received

by the detenu are clearly enumerated in the execution report.

15 So far as the police dossier is concerned, it contains four annxures

A, B, C and D. Annexure-A is certified copy of FIR 228/20, Annexure-B is

certified copy of FIR No. 251/2020, Annexure-C is challan in respect of FIR

No. 381/2020, whereas Annexure-D is certified copy of FIR 164/2021. This

clearly shows that only copies of FIRs in respect of FIR No. 228/2020, FIR

No.251/2020 and FIR No. 164/2021 have been provided to the detenu. Copies

of statements of the witnesses recorded under Section 161 Cr.PC and seizure

memos etc. have not been supplied to the detenu at all. In the absence of these

vital documents, it was not possible for the detenu to make an effective

representation against the impugned order of detention. Thus, in the instant

case, the vital safeguards provided to the detenu in terms of Article 22 (5) of

the Constitution of India have been observed by the respondents in breach. The