Reserved On: 11.08.2023 vs Union Territory Of J&K & Anr
2023 Latest Caselaw 1019 j&K/2

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      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                        WP(Crl) No. 136/2023

                                              Reserved on: 11.08.2023
                                              Pronounced on: 24.08.2023
Tawqeer Bashir Magray

                                                  ...Petitioner(s)

           Through: Mr. M.Ashraf Wani, Advocate.

                               Vs.
Union Territory of J&K & Anr.
                                                    ...Respondent(s)


           Through: Mr. Sajad Ashraf, GA vice
                    Mr.Mohsin Qadri, Sr.AAG.


CORAM: HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
                            JUDGMENT

1. By virtue of Order No. DIVCOM-"K"/21/2023 dated 04.03.2023 (for

short 'impugned order') passed by Divisional Commissioner Kashmir -

respondent No.2, the detenue namely Tawqeer Bashir Magray S/O Late

Bashir Ahmad Magray R/O Nowshara Boniyar Baramulla, has been

ordered to be detained under Section -3 of Prevention of Illicit Traffic in

Narcotic Drugs and Psychotropic Substance Act 1988 (for short 'the

Act'). Aggrieved of the said detention order, detenue, through his wife,

has filed the present petition seeking quashment of the same on the

grounds taken in the petition in hand.

2. Case set up by the petitioner is that the detaining authority has not

followed the constitutional and statutory procedural safeguards while

passing the detention order of the detenue; that that order of detention Page |2

has been passed in breach of the mandate of law as declared by the

Supreme Court of India as also the other High Courts of the country;

that the detention order passed by Divisional Commissioner, in terms of

the Central Act, is not competent to detain a person whereas the

competent officer is Secretary to Government or the officer of the rank

of Joint Secretary especially empowered in this behalf; that the grounds

of detention are vague and mere assertions of the detaining authority

and no prudent man can make an effective and meaningful

representation against these allegations; that the detenue was arrested in

connection with FIR No. 04/2023 under Section 8/21 NDPS Act on

30.01.2023 but owing to the non-involvement of the detenue in the said

FIR, he was admitted to bail by the court of Sessions Judge Baramulla

on 25.02.2023; that while facing trial in connection with FIR No.

04/2023, the detenue was ordered to be detained under the provisions of

NDPS Act vide order impugned. The grounds of detention as

formulated by Divisional Commissioner have also been incorporated in

the dossier which, ipso facto, demonstrates complete non-application of

mind on the part of the detaining authority and vitiates the detention of

the detenue.

3. Reply affidavit has been filed by respondents, vehemently resisting the

petition. It is contended that the impugned 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 followed while ordering his detention, as such, challenge thrown

to the impugned order of detention is not sustainable, hence on this

score the instant petition merits dismissal. It is further contended that

the detenue has been detained with a view to prevent him from Page |3

indulging in illegal trade and illicit traffic in Narcotic Drugs and

Psychotropic Substances after satisfying that the detenue is a great

threat for sustaining the conservative values of the society. The detenue

has remained a notorious trafficker of contraband substance like

'cannabis' and is involved in the distribution of the same among the

youth of the area. In the instant case there is enough material against

the detenue which is highly suggestive of the fact that the normal law of

the land is not sufficient to prevent him from continuing with his anti-

social activities and, it is evident that the detenue is highly motivated

and is not likely to desist from anti-social and unlawful activities.

4. Heard learned counsel for the parties and perused the detention record

produced by learned counsel for the respondents.

5. Detention record, as was directed to be made available, is produced by

learned counsel for the respondents, which, on perusal, would indicate

that FIR No. 04/2023 under Section 8/21 NDPS Act was registered at

Police station Sheeri against the detenue. The contraband seized from

the detenue, prima facie, indicates that he is fully involved in the illegal

trade in an organized manner which is a great threat for sustaining the

conservative values of the society. It has been observed that the

activities of the detenue have posed a serious threat to the health and

welfare of the people of the area. The reports received from the field

agencies are suggestive of the fact that the detenue is dealing with

illegal business of Narcotics and in order to carry out this illegal trade,

the detenue is exploiting the immature minds of the younger generation

by making them habitual addicts. The detenue, as per the reports of field

agencies, was supplying drugs against hefty amounts to the immature

youth, which in turn has exposed them to different kinds of immoral Page |4

and illegal criminal tendencies like, thefts and other illegal activates in

order to purchase drugs from the detenue. The drug mafia, of which the

detenue is an active member, is hell bent to spoil the life and career of

younger generation by selling drugs to them against hefty amounts.

Therefore, it was found imperative to detain the detenue under the

provisions of the Act.

6. So far as the contention of learned counsel for the petitioner that the

Divisional Commissioner Kashmir was not authorized under laws, as

detaining authority with the enactment of the J&K Re-organization Act,

2019, as the Divisional Commissioner has been designated as detaining

authority vide SRO 247 of 1988 dated 27.07.1988 issued by the

Government of J&K through Home Department, as such, that SRO does

not hold the field after repealing of the Acts in terms of the J&K Re-

organization Act, 2019, is concerned, the Union Government issued the

order called J&K Re-organization (Removal of Difficulties Orders)

2019 and Clause-14 of this Order is relevant, which is extracted as

under:-

"Anything done or any action taken including any appointment or delegation made, notification, instruction or direction issued, form, by-law or Scheme framed, certificate obtained, permit or license 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 & 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."

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7. Therefore, the argument advanced at bar by the learned counsel for the

petitioner that the Divisional Commissioner was not competent to pass

order of detention under the Act, is misplaced and is over ruled.

8. It would be apt to say that right of personal liberty is most precious

right, guaranteed under the Constitution. A person is not to be deprived

of his personal liberty, except in accordance with procedures established

under law and the procedure as laid down by the Apex Court, in the

case 'Maneka Gandhi vs. Union of India, (AIR 1978 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. Where a person is facing trial on a criminal charge and is

temporarily deprived of his personal liberty owing to criminal charge

framed against him, he has an opportunity to defend himself and to be

acquitted of the charge in case prosecution fails to bring home his guilt.

Where such person is convicted of offence, he still has satisfaction of

having been given adequate opportunity to contest the charge and also

adduce evidence in his defense.

9. However, framers of the Constitution have, by incorporating Article

22(5) in the Constitution, left room for 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. In such

a case it would be dangerous, for the people at large, to wait and watch

as by the time ordinary law is set into motion, the person, having

dangerous designs, would execute his plans, exposing general public to

risk and causing colossal damage to life and property. It is, for that Page |6

reason, necessary to take preventive measures and prevent a person bent

upon to perpetrate mischief from translating his ideas into action.

Article 22(5) of the Constitution of India, therefore, leaves scope for

enactment of preventive detention law.

10.Having glance of the grounds of detention, it is clear that the detenue

was involved in illicit drug activities. The detenue did not shun the path

of his nefarious and anti-social activities and continues to spoil the life

and career of young generation making them the addicts of these drugs.

The detenue was found actively involved in illegal business of drugs

and the detaining authority after keeping in view the activities of the

detenue, detained him under preventive custody, in terms of the

impugned order, which is under challenge in the present petition.

11.The menace of illicit drug activities is a social problem that harms youth

and their families, and the money it generates is diverted for disruptive

activities that have bearings on national security. The abuse of alcohol

and drugs has resulted in significant morbidity and mortality among

adolescents worldwide. Many of these youth lose their lives to drugs

and narcotics and a significant numbers are likely to grow up to become

drug addicts. No part of the world is free from the curse of drug

addiction. Drug abuse has emerged as a serious concern globally,

adversely affecting the physical and socio-economic well-being of the

country. It has severe repercussions on public health across various

sections of the society. The epidemic of drug abuse in younger

generation has assumed alarming dimensions in the country. Prevention

of drug abuse among adolescents requires awareness about its

destructive results. To overcome the menace of drug abuse, concerned

agencies hand-in-hand with the community heads are required to come Page |7

forward and deal with this menace with iron hand to save the society

more particularly the young generation and families.

12. It would be apt to refer to the observations made by the Constitution

Bench of the Supreme Court in the case of 'The State of Bombay v.

Atma Ram Shridhar Vaidya AIR 1951 SC 157'. Para- 5 of the said

judgment lays law on the point, which is profitable to be reproduced

hereunder:

"5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defence of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (8) the maintenance of supplies and services essential to the community ......... it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based Page |8

on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter- mine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government."

13. In light of the aforesaid legal position settled by the Six-Judge

Constitution Bench way back in the year 1951, the scope of looking

into the manner in which the subjective satisfaction is arrived at by the

detaining authority, is limited. This Court, while examining the

material, which is made basis of subjective satisfaction of the detaining

authority, would not act as a court of appeal and find fault with the

satisfaction on the ground that on the basis of the material before

detaining authority another view was possible.

14.The courts do not even go into the questions as to whether the facts

mentioned in the grounds of detention are correct or false. The reason

for the rule is that to decide this, evidence may have to be taken by the

courts and that it is not the policy of the law of preventive detention.

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15. Preventive detention is devised to afford protection to society. The

object is not to punish a man for having done something but to intercept

before he does it and to prevent him from doing. Justification for such

detention is suspicion or reasonable probability and not criminal

conviction, which can only be warranted by legal evidence. Thus, any

preventive measures, even if they involve some restraint or hardship

upon individuals, as said by the Supreme Court in the case 'Ashok

Kumar v. Delhi Administration & Ors., AIR 1982 SC 1143', do not

contribute in any way of the nature of punishment.

16. Observing that the object of preventive detention is not to punish a man

for having done something but to intercept and to prevent him from

doing so, the Supreme Court in the case 'Naresh Kumar Goyal v.

Union of India & Ors., 2005 (8) SCC 276', and reiterated in the

judgment dated 18th July 2019, rendered by the Supreme Court in

Criminal Appeal No.1064 of 2019 arising out of SLP (Crl.) No.5459

of 2019 titled 'Union of India and another v. Dimple Happy

Dhakad', has held that an order of detention is not a curative or

reformative or punitive, but a preventive action, acknowledged object of

which being to prevent anti-social and subversive elements from

endangering the welfare of the country or security of the nation or from

disturbing public tranquility or from indulging in anti-national activities

or smuggling activities or from engaging in illicit traffic in narcotic

drugs and psychotropic substances, etc., preventive detention is devised

to afford protection to society. The authorities on the subject have

consistently taken the view that preventive detention is devised to afford

protection to society. The object is not to punish a man for having done P a g e | 10

something but to intercept before he does it and to prevent him from

doing so.

17. The petitioner, who has been described as a Graduate and was running

a shop at Boniyar, the narcotic substance had been recovered from his

possession and the intelligence inputs received by the administration

also indicated that the petitioner was engaged in the illicit trafficking of

narcotic drugs, therefore, the apprehension of the detaining authority,

which has been recorded in the detention order, cannot be reviewed by

this Court on merits.

18. In the backdrop of foregoing discussion, the petition found to be devoid

of any merit is, accordingly, dismissed.

19. Detention record, as produced, be returned to learned counsel for

respondents.

(M. A. CHOWDHARY) JUDGE Srinagar 24.08.2023 Muzammil. Q

Whether the order is reportable: Yes / No