Maqsood Ahmad Shah vs 28/- Since The
2022 Latest Caselaw 1794 j&K/2

               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                AT SRINAGAR
                                 WP (Crl) no. 254/2022

                                                    Reserved on: 13.09.2022
                                                  Pronounced on: 19.10.2022

Maqsood Ahmad Shah
                                                                Petitioner(s)
                               Through:      Mr Imtiyaz Ahmad Sofi, Advocate

                                             v.
Union Territory of JK and others
                                                                    Respondent(s)
                               Through:      Mr Sajjad Ashraf, GA

CORAM:
           Hon'ble Ms Justice Moksha Khajuria Kazmi, Judge

                                    JUDGMENT

1/- The detenue namely Maqsood Ahmad Shah Son of Mohammad Abdullah

Shah resident of Kachiwara Handwara, District Kupwara, through his brother

Irshad Ahmad Shah, seeks quashment of detention order No. DIVCOM-

"K"/226/2022 dated 21.04.2022 issued by the Divisional Commissioner, Kashmir,

with consequent prayer for release of the detenue forthwith.

2/- The detention order, inter alia, is challenged on the grounds:

a) That the detenue has not been provided the entire material

forming basis of the detention order, to enable him to make an

effective representation against his detention order;

b) That the grounds of detention are vague, bereft of particulars

and details;

c) That the detenue was not informed as to whom is he required

to address a representation;

d) The representation sent by the detenue through post has not

been decided by the respondents violating the constitutional

provisions of law and the provisions of the Public Safety Act;

e) That there is no proximity between the alleged involvement of

the detenue in the police FIR of 2018;

f) That the detention order has been issued with complete non-

application of mind as the detaining authority did not consider

the fact that the detenue has already been granted bail by the

competent court of law;

g) The mandate of the Act has not been fulfilled as the detention

order has not been approved in time nor has the Advisory

Board given its opinion within the prescribed period;

h) Preventive law is not passed by way of punishment and liberty

cannot be snatched on dictations of police and in violation to

constitutional safeguards;

i) That the grounds of detention are replica of the police dossier

except for minor changes;

j) The respondents did not take recourse to ordinary law to take

care of the alleged acts of the detenue;

k) That there is delay between the time the case was

recommended for detention and the time in passing the order

of detention;

l) The grounds of detention were not provided to the detenue in

Kashmiri language which he understands;

m) That the detenue had been bailed out in FIR no. 36/2018,

however, there is no mention of such thing either in dossier or

otherwise creating an impression that the detenue continues to

be in custody;

3/- Pursuant to notice, respondents appeared through their learned counsel and

filed the counter affidavit stating therein that the detention order is well founded, in

fact and law, and seek dismissal of the petition.

4/- Heard learned counsel for the parties and perused the records.

5/- The learned counsel for the petitioner vehemently argued that the order

impugned is without jurisdiction as the Detaining Authority is not authorized to

issue the detention order in terms of Prevention of Illicit Traffic in Narcotic Drugs

and Psychotropic Substances Act, 1988, in view of the enactment of Jammu and

Kashmir Re-Organization Act of 2019 read with Removal of Difficulties Order,

2019, in the Union Territory of Jammu and Kashmir. The learned counsel submits

in terms of Section 3 of the Central NDPS Act, the Divisional Commissioner is not

competent to issue the detention order.

6/- Learned counsel for petitioner submits that there was no material before the

detaining authority to pass the detention of the detenue and in absence of relevant

material the detention order is passed on mere ipsi dixit of detaining authority,

rendering the same as bad in law.

7/- Learned counsel for the petitioner further submitted that the detaining

authority has not applied its mind while issuing the impugned order, for, it was

issued at the time when the detenue was granted bail by the competent court of law

which was not taken into consideration at all.

8/- The learned counsel for petitioner would further submit that the detenue has

not been provided the entire material referred to in the grounds of detention

resultantly the right of making effective representation against the impugned order

of detention, as enshrined under Article 22 (3) of the Constitution, has been

violated. He further submits that the brother of the detenue submitted a

representation to the respondents, on whatever material was made available, which

too has not been considered which makes the detention order as bad in law,

therefore, needs to be quashed.

9/- The learned counsel further submits that the issuing authority has exercised

its power in terms of the Act that stands repealed, therefore, the same is bad in the

eyes of law. He submits that in terms of the Central NDPS Act, it is the officer of

the rank of Secretary to Government or the Joint Secretary specially empowered in

this behalf who is competent to issue a detention order and the Divisional

Commissioner, the issuing authority in the instant case, is not as such competent to

issue the impugned order.

10/- In support of his submissions, the learned counsel for the petitioner, referred

to and relied upon the judgments reported as AIR 1985 SC 764; AIR 1981 SC 728;

AIR 2009 SC 2184; 2017 (2) SLJ 681; 2017 (2) SLJ 650; AIR 1970 SC 97; AIR

1974 SC 917; & 2018 (12) SCC 150.

11/- Mr. Sajjad Ashraf, learned Government Advocate, on the other hand submits

that the impugned order of detention is well founded and there is nothing bad about

it. He submits that the detenue has been provided the material relied upon by the

detaining authority while issuing the impugned detention order. He further submits

that the detenue has also been informed about his right of making representation

against his detention. He submits that the detaining authority has fully applied its

mind while issuing the detention order and there is nothing on record to controvert

it.

12/- The learned counsel for the respondents further submits that Section (14) of

the Jammu and Kashmir Re-organisation (Removal of Difficulties) Order, 2019,

takes care of the situation projected in the instant case, therefore, it would be

profitable to reproduce the said provisions of law, herein, thus:

"(14) Anything done or any action taken including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or Scheme framed, certificate obtained, permit or licence granted or registration effected or agreement executed under any law shall be deemed to have been done or taken under the corresponding provisions of the Central laws now extended and applicable to the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the Central laws now extended."

14/- The learned counsel for the respondents in support of his submissions

referred to and relied upon the law laid down in (1975) 3 SCC 198.

15/- At the very outset, the submission of the learned counsel for the petitioner in

respect of the order being without jurisdiction having been issued by an

incompetent authority needs to be addressed as the other grounds would definitely

be subservient to the primary issue of jurisdiction.

16/- Let us take a look at clause (1) of Section 3 of the Prevention of Illicit

Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, in the first

instance:-

"3. Powers to make orders detaining certain persons.--(1) The Government or any officer of the Government, not below the rank of the Secretary to Government, specially empowered for the purposes of this section by the Government, may, if

satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from committing any of the acts within the meaning of 'illicit traffic' as defined in clause

(c) of section 2, it is necessary so to do, make an order directing that such person be detained."

17/- The provision of law supra, pressed into service by the learned counsel for

the petitioner to indicate that it is the Government or any officer not below the rank

of the Secretary to Government, who is competent to detain a person under the

provisions of NDPS Act, clearly endorses such submission. However, in view of

the submission of the learned counsel for the respondents, the provision of law

aforementioned has not to be read in isolation but together with Section (14) of the

Jammu and Kashmir Reorganisation (Removal of Difficulties) Order, 2019, which

reads as under:

"(14) Anything done or any action taken including any

appointment or delegation made, notification, instruction or

direction issued, form, bye-law or Scheme framed, certificate

obtained, permit or licence granted or registration effected or

agreement executed under any law shall be deemed to have

been done or taken under the corresponding provisions of the

Central laws now extended and applicable to the Union

Territory of Jammu and Kashmir and the Union Territory of

Ladakh and shall continue to be in force accordingly, unless

and until superseded by anything done or any action taken

under the Central laws now extended." (Emphasis supplied)

18/- Section 17 of The Jammu and Kashmir Reorganisation (Removal of

Difficulties) Order, 2019, also appears to be relevant, therefore, is taken note of

herein, thus:

"(17) Any authority constituted under any law in the existing

State of Jammu and Kashmir immediately in force before the

appointed day shall be deemed to have been constituted

under the corresponding provisions of the Central laws

applicable to the Union Territory of Jammu and Kashmir

and the Union Territory of Ladakh, until a new authority is

constituted under the law applicable to the Union Territory

of Jammu and Kashmir or the Union Territory of Ladakh, as

the case may be, and any proceedings initiated or action

taken by such authority, shall for all purposes be deemed to

be valid and operative."(emphasis supplied)

19/- Now let us take a look at SRO 247 notified in terms of Notifiction dated 27 th

July, 1988:-

"SRO 247. In exercise of the powers conferred by Sub-section

(1) of Section 3 of the Jammu and Kashmir Prevention of

Illicit Traffic in Narcotic Drugs and Psychotropic Substances

Ordinance, 1988 (Ordinance No. 1 of 1988), the Government

hereby specially empowers the Divisional Commissioners

Jammu/Srinagar also for purposes of the said section."

20/- The said Notification was followed by one more notification on the same

date i.e. 27th July, 1988, by virtue of which errata appearing therein to the effect

that Divisional Commissioner, Jammu/Kashmir was to be read in place of

Divisional Commissioners, Jammu/Srinagar.

21/- The above referred provisions of law, when read in conjunction, would make

it clear that the competent authority to detain a person in terms of the relevant

provisions of the NDPS Act continues to be same as it was prior to commencement

of J&K Reorganisation Act, 2019, unless superseded by any action under the

Central laws now extended and any action taken by such authority shall be deemed

to have been taken under the corresponding provisions of the Central laws and

shall be valid and operative.

22/- Therefore, the Ordinance No. 1 of 1988 notified in terms of SRO 247 of

1988, that confers powers, under sub-section 1 of Section 3 of the Jammu and

Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substance, upon the Divisional Commissioner Kashmir and Jammu, continues to

have the same force as it had before the commencement of the J&K

Reorganization Act, 2019, because there is absolutely no material before the court

to come to the conclusion that an action has been taken under the Central laws

pursuant to the J&K Reorganization Act, 2019 that amounts to supersession of the

earlier arrangement. Moreover, there is no document on record that would show

that subsequently a new authority has been appointed in this behalf.

23/- That being the case, the submission of the learned counsel for the petitioner

that the Divisional Commissioner, Kashmir, was not competent to issue the

detention order under the provisions of NDPS Act, is bereft of reasons, therefore,

is turned down.

24/- The next ground projected by the petitioner is that he had submitted a

representation against his detention but the same has not been considered by the

respondents.

25/- It has been specifically contended by the petitioner that he had made a

representation against his detention through his brother, which, seemingly, has

been received by the office of Divisional Commissioner, Kashmir, as would the

postal receipt on record would show.

26/- The above assertions have gone unrebutted as there is no denial to the same

by the respondents in the counter affidavit. The detention record does not suggest

that the said representation has either been considered or placed before the

Advisory Board or considered by the Board. The failure of the respondents to

consider the representation of the detenue indisputably amounts to violation of

constitutional safeguards provided in terms of Article 22(5) of the Constitution. A

reference in this behalf is made to the judgment of the Apex Court delivered in the

case of Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559,. Paragraph

no. 4 of the judgment supra, would be relevant, therefore, is reproduced herein,

thus:-

"4. The normal rule of law is that when a person commits an

offence or a number of offences, he should be prosecuted and

punished in accordance with the normal appropriate criminal

law; but if he is sought to be detained under any of the preventive

detention laws as may often be necessary to prevent further

commission of such offences, then the provisions of Article 22(5)

must be complied with. Sub-Article (5) of Article 22 reads:

When any person is detained in pursuance of an

order made under any law providing for preventive

detention, the authority making the order shall, as

soon as may be, communicate to such person the

grounds on which the order has been made and shall

afford him the earliest opportunity of making a

representation against the order.

This Sub-Article provides, inter alia, that the detaining authority

shall as soon as may communicate the grounds of detention and

shall afford him the earliest opportunity of making a

representation against the order. The opportunity of making a

representation is not for nothing. The representation, if any,

submitted by the detenu is meant for consideration by the

Appropriate Authority without any unreasonable delay, as it

involves the liberty of a citizen guaranteed by Article 19 of the

Constitution. The non-consideration or an unreasonably belated

consideration of the representation tantamount to non-

compliance of Sub-Article (5) of Article 22 of the Constitution."

27/- From the aforesaid legal position on the subject, it is clear that non-

consideration or an unreasonably belated consideration of the representation

tantamount to non-compliance of Article 22(5) of the Constitution, which in turn

renders the detention unsustainable in law.

28/- Since the respondents have failed to provide the safeguards of the

Constitution to the detenue, therefore, the detention order on the face of such

failure cannot survive. The detention order only on this count can be quashed

without going into other issues raised by the petitioner in his petition.

29/- Viewed thus, the petition in hand succeeds and is allowed as such. The

detention order bearing no. DIVCOM-"K"/226/2022 dated 21.04.2022 passed by

respondent no. 2 is quashed. As a corollary to the quashment of the detention

order, the detenue is directed to be released from the preventive detention forthwith

provided he is not required in any other case.

30/- Record produced by the learned counsel for the respondents shall be

returned to him against a proper receipt.

Srinagar
19.10.2022                                                (Moksha Khajuria Kazmi)
Amjad lone, Secretary                                                      Judge


                        Whether approved for reporting:      Yes/ No