Tajinder Singh Alias Happy vs Union Territory Of J&K And Others
2023 Latest Caselaw 211 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU
                                                      Reserved on 02.02.2023
                                                    Pronounced on 09.02.2023

                                                      WP(Crl) No. 58/2022
                                                      CM No. 6230/2022

Tajinder Singh alias Happy                       .....Appellant(s)/Petitioner(s)
                     Through: Mr. K. S. Johal, Sr. Advocate with
Q
                              Mr. Supreet Singh Johal, Advocate
                Vs
Union Territory of J&K and others                           ..... Respondent(s)
                     Through: Mr. Pawan Dev Singh, Dy.AG


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

                               JUDGMENT

1. The petitioner-Tajinder Singh alias Happy S/o. Mohinder Singh, Ward

No. 4, Simbal Camp, Tehsil R. S. Pura, District, Jammu(hereinafter to

referred as the detenue) has challenged order No. PITNDPS 05 of 2022

dated 27.07.2022 passed by the Divisional Commissioner, Jammu

(hereinafter to be referred as the Detaining Authority), whereby he has

been taken into preventive custody in terms of Section 3 of the

Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic

Substances Act, 1988 (hereinafter to be referred as the PITNDPS Act).

2. It has been contended in the petition that the detenue/petitioner has been

taken into preventive custody on the basis of an order that has been

passed without application of mind. It is further contended that perusal

of the order would show that the same has been passed on the grounds

which are alien to requirements of Section 3 of the PITNDPS Act as the

impugned order of detention has been passed on the ground that the

activities of the petitioner pose a serious threat to the health and welfare

of the people. It is also contended that the mandate of Section 3 of the

PITNDPS Act is not fulfilled in the instant case, inasmuch as the

impugned order of detention has been passed on the basis of only a

single incident relating to recovery of few grams of heroin. It has also

been contended that the petitioner has not been provided the translated

version of the grounds of detention etc. which prevented him from

making an effective representation against the order of detention. Thus,

according to the petitioner, statutory and constitutional safeguards

available to the petitioner have been observed in breach.

3. The petition has been resisted by the respondents by filing a counter

affidavit. In their counter affidavit, the respondents have submitted 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 Union Territory. It

has been submitted that the petitioner has been found involved in

numerous offences and various FIRs have been registered against the

petitioner in District Jammu. It has been submitted that the petitioner

has been provided all the relevant record along with detention order and

the grounds of detention, whereafter, the Executing Officer has made

him to understand the grounds of detention in Hindi/Dogri, a language

which is understood by the petitioner. It has also been contended that

the subjective satisfaction arrived at by the Detaining Authority cannot

be subjected to judicial review by this Court in exercise of writ

jurisdiction and that the petitioner instead of availing the alternative

remedy of filing a representation before the Advisory Board, cannot

maintain the instant writ petition.

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

the case as well as the detention record produced by the respondents.

5. The primary ground that has been projected by the learned senior

counsel appearing for the petitioner for assailing the impugned order of

detention is that there has been non application of mind on the part of

the Detaining Authority in passing the impugned order of detention. It

has been contended that the Detaining Authority has recorded in the

impugned order of detention that the activities of the petitioner pose a

serious threat to the health and welfare of the people which is not a

ground for resorting to preventive detention in terms of Section 3 of the

PITNDPS Act.

6. A perusal of the provisions contained in Section 3 of the PITNDPS Act

would show that a Detaining Authority, if satisfied with respect to any

person that with a view to prevent him from engaging in illicit traffic in

narcotics drugs and psychotropic substances, it is necessary so to do,

can make an order directing the said person be detained, meaning

thereby that order of preventive detention under section 3 of the

PITNDPS Act can be passed on the ground of preventing a person from

engaging in illicit traffic in narcotic drugs and psychotropic substances.

7. A perusal of the impugned order of detention shows that the Detaining

Authority has observed that the petitioner is engaged in repeated cases

of illicit traffic in narcotic drugs and psychotropic substances which

pose a serious threat to the health and welfare of the people. The order

goes on to observe that with a view to prevent the petitioner from

committing any of the acts within the meaning of illicit traffic and also

against the general public especially the younger generation from the

use and occupation of the drugs, it is necessary to detain him.

8. From the above, it is clear that the Detaining Authority has spelt out in

the order of detention that activities of the petitioner pose a serious

threat to the health and welfare of the people as he is engaged in

repeated illicit traffic in narcotic drugs and psychotropic substances and

with a view to prevent him from doing so, the order of detention has

been passed. The Detaining Authority is, therefore, aware of the

situation that the petitioner is indulging in illicit traffic in narcotic drugs

and psychotropic substances and in order to prevent him from doing so,

it is necessary to detain him. Merely, because the Detaining Authority

has also observed that the activities of the petitioner pose a serious

threat to the health and welfare of the people would not render the

impugned order of detention illegal when it is clearly discernible from

the contents of the impugned order of detention that the Detaining

Authority has after recording subjective satisfaction that the petitioner is

indulging in illicit traffic in narcotic drugs and psychotropic substances

and that it is necessary to prevent him from doing so, passed impugned

order of detention. Thus, it cannot be stated that the Detaining Authority

has passed the impugned order of detention on a ground which is alien

to the provisions contained in Section 3 of the PIT NDPS Act.

9. Next, it has been contended by the learned senior counsel appearing for

the petitioner that most of the FIRs reference whereof is made in the

grounds of detention relate to offences other than offences under NDPS

Act and only two FIRs, i.e, FIR No. 76/2019 and FIR No. 62/2022 are

related to offences under NDPS Act. On this ground, it has been urged

that only on the basis of two instances, the impugned order of detention

could not have been passed. It has also been contended that even in

these two FIRs, the quantity of contraband substance recovered from

the petitioner is only a few grams.

10. So far as the question whether only two incidents were sufficient for the

Detaining Authority to initiate proceedings for preventive detention is

concerned, it is to be noted that it is for the Detaining Authority to have

subjective satisfaction about the apprehension of the petitioner

indulging in illicit traffic in narcotic drugs and psychotropic substances.

Even one incident may be sufficient to satisfy the Detaining Authority.

It all depends upon the nature of the incident. In the instant case, the

Detaining Authority was fully satisfied that there was apprehension that

the petitioner would indulge in illicit traffic in narcotic drugs and

psychotropic substances, in case he was allowed to remain free. The

sufficiency of the material or the degree of probative criteria for

satisfaction for the detention is the domain of the Detaining Authority.

This Court cannot sit in appeal or exercise its powers of judicial review

in this regard. The contention of the learned counsel for the petitioner is

therefore, without any substance.

11. It has been contended that most of the incidents reference whereof is

made in the grounds of detention are stale in nature and on the basis of

these stale incidents which have no live and proximate link to the

requirement of placing the petitioner in preventive custody, the

impugned order of detention could not have been passed. The ground

urged by the petitioner, as it appears, is without any merit for the reason

that one of the incidents relates to June, 2022, when contraband drugs

were recovered from the possession of the petitioner and FIR No.

62/2022 was registered against him with Police Station, Miran Sahib.

The impugned order of detention has been passed on 27.07.2022 and as

such, the latest incident mentioned in the grounds of detention has live

and proximate link to the necessity of passing the impugned order of

detention.

12. The reference of earlier incidents made by the Detaining Authority in

the grounds of detention is only to show that the petitioner had the

propensity and tendency to indulge in criminal activities as also

activities related to drug trafficking. Merely because reference has been

made to these past incidents, it cannot be stated that the petitioner has

been subjected to preventive custody on the basis of stale incidents.

13. It has also been contended by the learned senior counsel for the

petitioner that the translated version of the material relied upon for

formulating the grounds of detention has not been supplied to the

petitioner which has hampered him from making an effective

representation against the impugned order of detention. It has been

contended that the petitioner is a semiliterate person as such, he could

not understand the technical language used in the grounds of detention.

14. In the above context, a perusal of the record of detention shows that the

petitioner has been provided all the materials including the detention

order, grounds of detention, police dossier, FIRs and the material

collected during investigation. The detention record contains affidavit

sworn in by the Executing Official, namely, PSI Mohd. Altaf, Police

Station, Miran Sahib in which he has clearly stated that the petitioner

was explained the grounds of detention in the language which he

understands fully and the report of execution reveals that the petitioner

has been made to understand the grounds of detention in Hindi/Dogri

languages which is fully understood by him. In the face of this affidavit

of the Executing Official, it cannot be stated that the petitioner was not

made aware about the grounds of detention in the language he

understands.

15. Viewed in the above context, I do not find any ground to interfere with

the impugned order of detention. The writ petition lacks merit and is

dismissed as such.

16. Record of detention be returned to the learned counsel for the

respondents.

(SANJAY DHAR) JUDGE

Jammu 09.02.2023 Rakesh Whether the order is speaking: Yes Whether the order is reportable: Yes