Jammu & Kashmir High Court
Reserved On : 17.10.2022 vs Union Territory Of Jammu & Kashmir ... on 31 January, 2023
S. No. 01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU 1.
2.
3.
4.
5.
6.
WP (Crl) No. 20/2022
CrlM No. 894/2022
Reserved on : 17.10.2022
Pronounced on : 31 .01.2023
Daljeet Singh, Age 35 years; ....Petitioner/Appellant(s)
S/o S.Tarlochan Singh;
R/o Logate Morh, District Kathua;
A/P Detenue House in Central Jail
Kote Bhalwal, Jammu.
Through :- Mr. M. K. Bhardwaj, Sr. Advocate with
Mr. Gagan Kohli, Advocate.
V/s
1. Union Territory of Jammu & Kashmir through, ....Respondent(s)
Commissioner/Secretary to Govt,
Home Department, Civil Secretariat, Jammu.
2. Divisional Commissioner, Jammu.
3. Superintendent, Central Jail,
Kot Bhalwal, Jammu.
4. Senior Superintendent of Police, Kathua.
Through :- Mr. Dewakar Sharma, Dy.AG
Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
JUDGMENT
7.
1. Petitioner has invoked the jurisdiction of this Court under
Article 226 of the Constitution of India questioning the
legality, propriety and correctness of impugned detention order
No. PIT NDPS-4 of 2022 dated 25.04.2022 passed by
respondent No.2-Divisional Commissioner Jammu alongwith
the proceedings conducted under Section 3 of the Prevention
of Illicit Traffic in Narcotic Drugs and Psychotropic Substance
Act 1988 r/w SRO 247 of 1998 dated 27.07.1988 and has
sought the quashment of the impugned detention order on the
following grounds:-
(i) that the detention order is bad, illegal and without
application of mind as the petitioner has been detained by
the respondent No. 3 without providing any sufficient
material i.e. copies of the FIRs, allegations in dossier of
respondent No. 4, statement of witnesses recorded under
Section 161 Cr.P.C and grounds of detention which is
mandatory requirement as per the provisions of Public
Safety Act, non providing of sufficient material has
prevented the petitioner from making effective
representation against the impugned detention order before
the Government or detaining authority, which is clear
violation of mandate of Article 22 (5) of Constitution of
India r/w Section 13 of Public Safety Act, 1978 and
therefore vitiates the detention order;
(ii) that the detection order is based on non-application of
mind as respondent No. 2 while passing the detention order
has not reflected in it that the petitioner was bailed out by the
Court and just to detain the petitioner, respondent no. 3 has
submitted the dossier, even in none of the FIRs which have
been mentioned by the respondents in the detention order
petitioner has been convicted by the competent Court who is
on bail, but in order to defeat the objective of the bail,
impugned detention order has been passed;
(iii) that the impugned detention order does not mention the
period of detention, order of detention has been approved by
the advisory board and it is for three months as provided
under Section 18 of the J&K Public Safety Act 1978, the
grounds of detention do not contain any brief history of the
petitioner and the dates thus the petitioner has been detained
on the basis of vague grounds which have been drafted in a
routine manner, dossier submitted by respondent No. 3 is
without any date and it is not reflected on which date he
forwarded the dossier to respondent No. 2 as the forwarding
letter grounds of detention and dossier have been supplied in
English language which has caused great prejudice to the
petitioner in making an effective representation to the
competent authority, the non-supply of such documents in a
language which the petitioner understands has infringed the
rights of the petitioner under Article 22(5) of the
Constitution of India, whereby the detention order gets
vitiated;
(iv) that in the five (05) FIRs which have been mentioned in
the dossier are of the year 2016, 2017, 2018 & 2019 and
after 2019 till the date of passing of the detention order no
such incident or FIR has been lodged against the petitioner,
but the respondents have illegally and arbitrarily detained the
petitioner in the aforesaid FIRs in which he is facing trial,
the person who has drained the petitioner has not filed any
affidavit or undertaking which could disclose that the person
executing the detention order had explained the grounds of
detention to the petitioner in the language he understands,
non-filing of affidavit or undertaking is fatal for passing of
the detention order.
2. Respondent No. 2- Divisional Commissioner Jammu, has filed
counter, wherein passing of the impugned detention order has
been defended, and it has been specifically pleaded that the
petitioner/detenue is involved in Illicit Traffic in Narcotic
Drugs and Psychotropic Substances which poses serious threat
to the health and welfare of the people and has deleterious
effect on the national economy, the detention order was passed
by him only after careful examination of the dossier and the
relevant record made available by SSP Kathua vide his
endorsement No. PA/2022/PSA/3925-30 dated 19.04.2022 and
after following due procedure of law under the relevant
provisions of The Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act 1988. It is contended,
that the detention warrant was duly executed upon the
petitioner/detenue and the copy of the detention warrant,
grounds of detention and other relevant record was read over
and explained to the petitioner/detenue in the language he
understands, and the above documents were handed over to the
petitioner in presence of Jail Authorities of Central Jail Kot-
Bhalwal Jammu, moreover, petitioner/detenue was informed
about his right to make representation to the Government as
well as to the detaining authority against the order of
detention.
3. Mr. M. K. Bhardwaj, learned senior counsel appearing for the
petitioner, has sought the setting aside of the impugned
detention order by vehemently articulating arguments, that
petitioner/detenue has not been supplied the detention
record/material viz; copies of dossier, copies of FIRs, site plan,
recovery memo, statements of witnesses recorded under
Section 161 Cr.P.C to enable him to make a effective
representation against the impugned detention order, by not
supplying the essential material petitioner/detenue's right to
make a effective representation to the Government or
detaining authority has been violated/infringed under Article
22 (5) of the Constitution of India r/w Section 13 of the J & K
Public Safety Act 1978 and such failure on part of the
detaining authority vitiates whole of the detention order. It is
argued, that there is unexplained delay in passing the order of
detention from the date the proposal was sent to the detaining
authority by respondent No. 4, the detention order has been
based on non application of mind by the detaining authority,
the dossier submitted by respondent No. 3 is without any date
as it is not reflected on which date the same has been
submitted to the detaining authority i.e. respondent No. 2, the
grounds of detention and dossier have been supplied to the
petitioner in English language which he does not understand
and the same has caused great prejudice to the petitioner who
has been debarred from making effective representation to the
competent authority and on these counts even the detention
order requires to be quashed. To support his arguments, Mr.
Bhardwaj, learned senior counsel has relied upon the
judgments viz; (i) Cr. Appeal No. 1708 of 2022 ( Arising out of
SLP (Crl) No. 6683 of 2022 titled Sushant Kumar Banik vs. State
of Tripura & others, decided by Hon'ble Supreme Court on
30.09.2022 and (ii) WP(Crl) No. 55/2021, decided on 23.03.2022
by Jammu and Kashmir High Court (Jammu Bench) [Hamraz Singh
vs. Union Territory of Jammu and Kashmir].
4. Mr. Dewakar Sharma, learned Dy. AG has vehemently
supported the impugned detention order against the petitioner
and has sought its affirmation by projecting arguments, that
the petitioner/detenue is involved in as many as five FIRs viz;
(i) FIR No.93/2016 under Section 8-B/21/22 NDPS Act of
Police Station Kathua, (ii) FIR No. 12/2017 under Sections
8/21/22 NDPS Act Police Station Lakhanpur, (iii) FIR No.
142/2017 under Sections 8/21/22 NDPS Act Police Station
Kathua, (iv) FIR No. 214/2018 under Sections 8/21/22 NDPS
Act Police Station Rajbagh and (v) FIR No. 157/2019 under
Sections 8/21/22 NDPS Act Police Station Kathua, wherein,
from his possession contraband heroine has been recovered on
different dates of occurrences; petitioner/detenue is habitual
criminal involved in illicit trafficking leading to spread of drug
addiction among the general public especially the youth of the
area; the criminal activities of the petitioner/detenue are
prejudicial to the society at large besides detrimental to the
peace and tranquility and menace to the public order;
petitioner/detenue is engaged in sale and purchase of illicit
traffic in narcotics drugs and psychotropic substances which
poses a serious threat to the health and lives of the young
generation; petitioner/detenue has close nexus with the gang
of criminals involved in illicit trafficking of drugs in
clandestine manner to earn huge and easy bucks and has
spread the network of drug peddling in the entire UT of J & K;
petitioner/detenue has no respect for law and order and public
tranquility causing serious threats prejudicial to the security of
UT of J & K. It is argued, that keeping in view the continuous
and repeated involvement of the petitioner/detenue in the
narcotic trade, respondent No. 4 vide his endorsement vide
No. PA/2022/PSA/3925-30 dated 19.04.2022 recommended
the detention of the petitioner/ detenue to prevent him from
indulging in illicit traffic in Narcotic Drugs and Psychotropic
Substances, and in a view to prevent the petitioner/detenue
from further committing any illicit trafficking in Narcotic
Drugs and to secure the health and welfare of public at large
petitioner/detenue has been rightly and correctly detained
under Section 3 of The Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act 1988. It is moreso
argued, that as per the detention record the petitioner has been
supplied all the essential detention record including the copies
of detention order, notice of detention, grounds of detention,
dossier of detention, copies of FIRs, statements of witnesses
and other related relevant documents (total 23 leaves) through
Executing officer Sh. O.P.Chib Police Inspector No. ESJ-
955634 of Police Station Kathua, moreso, the impugned
detention order has been read over and explained to the
petitioner/detenue in Hindi and Dogri language understood by
him fully and he has also been informed of his right to make
representation to the Government as well to the Detaining
Authority if he so desires, the order of detention has been
passed by respondent No. 2 on 25.04.2022 and the same has
been executed upon the petitioner on 26.04.2022 without any
delay. In support of his arguments, learned Dy. AG has relied
upon a judgment titled Yudhvir Singh vs. Union Territory of
J&K and others {WP (Crl) No. 28/2021 decided on 03.12.2021
by Coordinate Bench of this Court}.
5. I have heard learned counsel for the parties, perused the
averments of the petition, counter affidavit filed by the
respondent No. 2, record made available by the respondents
and the relevant law on the subject matter coupled with the
judgments relied upon by learned counsel for the parties.
6. Dealing with the first argument canvassed by learned senior
counsel for the petitioner, that he has not been supplied with
essential material of detention record which has debarred him
from making effective representation to the Government or to
the detaining authority which has vitiated the detention order,
it is apt to reiterate here, that bare perusal of the detention
record clearly demonstrates that the impugned detention order
No. PIT NDPS-4 of 2022 has been passed by respondent No.2-
Divisional Commissioner Jammu on 25.04.2022 on the
strength of material like dossier submitted by respondent No.4-
SSP Kathua vide his endorsement No. PA/2022/PSA/3925-30
dated 19.04.2022. The grounds of detention have been clearly
delineated by respondent No. 2 which reads as under:-
"You Daljeet Singh S/o Tariochan Singh R/o
Legate Morh Tehsil and Distt. Kathua aged 39 years, as per
dossier prepared by Senior Superintendent of Police,
Kathua do hereby informed that you are a habitual criminal
involved in the various crimes/drug trafficking cases
leading to spread of drug addiction among the general
public, specially youth of the area. You are acting in a
manner which is prejudicial to the society at large besides
detrimental to the peace and tranquility and menace to the
public order. Due to your activities and network as well as
muscle power you are engaged in sale and purchase of
illicit traffic in narcotics drugs and psychotropic substances
which poses a serious threat to the health and lives of
young generation and even to the economy of the UT of J
& K. You are posing threat to the security of the UT of J &
K and Country as well, also to the health of general public
at large. You have very close nexus with the gang of
criminals who have started illicit trafficking of drugs in a
clandestine manner to earn huge and easy bucks and also
have spread the network of drug peddling in the entire UT
of J & K. It is also not out of the place to mention that you
have no respect for the laws of the land and you have been
committing breach of peace and law and order and public
tranquility. You are surreptitiously being indulging in
criminal activity like drug mafia inside and outside the
Kathua District endangering not only the youth but causing
serious threats prejudicial to the security of UT of J & K.
Reportedly, you are habitual narcotics consumer and
engaged in smuggling for narcotics for couple of years and
smuggle it to Kathua District in large quantity and although
you are bailed out, but still you are continuing with all such
activities. Your criminal activities are highly prejudicial to
the maintenance of the public order and detrimental to the
health and lives of the public at large. The details of cases
registered against you and you are as under:-
1. "FIR No. 93/2016 U/S 8-B/21/22 NDPS Act of P/S
Kathua:-
On 03-03-2016 a police party of P/S Kathua led by ASI
Mohd Hanief when reached near CTM NHW you and
your associate on seeing the Police party tried to escape
away from the spot. You were chased by the police
party and apprehended from the spot. During search,
police party recovered 10 grams of heroin from your
possession and 5.75 gm Heroin from your associate,
namely, Darshan Singh. On this, the instant case FIR
No. 93/2016 U/S 8-B/21/22 NDPS Act was registered at
P/S Kathua and investigation of the case entrusted to SI
Mohan Lai l/C PP Ind. Estate Kathua. After completion
of all required/ legal formalities in the instant case the
investigation of case was closed as Challan was
produced before the Hon'ble Court on 28-03-2016 for
judicial determination.
2. FIR No. 12/2017 U/S 8/21/22 NDPS Act of P/S
Lakhanpur:-
On 25/01/2017 Inspector Kulbir Singh SHO P/S
Lakhanpur alongwith other official of P/S Lakhanpur
while on patrolling/Naka checking duty at Lakhanpur
near Ravi Bridge. During checking your car bearing
registration No. JK01P-8707 coming from Punjab
towards Kathua was signaled to stop for checking
purpose. During preliminary enquiry you disclosed your
name as Daljeet Singh S/o Tarlochan Singh R/o Logate
Morh, Kathua. On your personal search 4.50 grams
Heroin was recovered from left pocket of your pajama.
On this instant case FIR No.12/2017 U/S 8/21/22 NDPS
Act was registered at P/S Lakhanpur and investigation
was entrusted to ASI Daljeet Singh of P/S Lakhanpur.
After completion of all required /legal formalities in the
instant case and the investigation of case was closed as
Challan was produced before the Hon'ble Court on 22-
02-2017 for judicial determination.
3. FIR No. 142/2017 U/S 8/21/22 NDPS Act of P/S
Kathua:-
On 05/05/2017 a police party of P/S Kathua led by ASI
Rashpal Singh was on patrolling/naka checking duty at
Lachipur. During patrolling when they reached near
Link Road Lachipur found you alongwith your
associate standing in nearby bushes. On seeing the
police party you alongwith your associate tried to ran
away from the spot but police party with the help of
other police officials surrounded you and your
associate. On preliminary enquiry you disclosed your
name as Daljeet Singh @ Rocky S/o Tarlochan Singh
R/o Logate Morh Kathua and the name of your
associate as Rangeet Singh S/o Balbir Singh R/o W. No.
13 Hatli Morh Kathua. On your personal search 06
grams Heroin was recovered from your possession and
11 grams of heroin was recovered from the possession
of Rangeel Singh. On this instant case FIR No.
142/2017 U/S 8/21/22 NDPS Act was registered at P/S
Kathua and investigation entrusted to SI Chander
Bhushan of P/S Kathua. After completion of all
required/ legal formalities in the instant case and the
investigation of case was closed as Challan was
produced before the Hon'ble Court on 02-06-2017 for
judicial determination.
4. FIR No. 214/2018 U/S 8/21/22 NDPS Act of P/S
Rajbagh:-
On 04/09/2018 police party of P/S Rajbagh led by SI
Mohinder Singh was on patrolling/Vehicle checking
duty at NHW Rajbagh. During checking your car
bearing registration No. JK11A-4884 coming from
Chadwal towards Kathua was signaled to stop for
checking purpose. During checking you were found
sitting in the said car along with 02 other associates.
When enquired, you disclosed your name as Daljeet
Singh S/o Tarlochan Singh R/o Legate Morh, Kathua
and the names of your associates as Deepak Sharma S/o
Kapoor Dass R/o Gokal Chack and Joginder Paul S/o
Amarnath R/o Jakhbar, Kathua. During checking total
14 grams Heroin was recovered out of which 05 grams
of heroin was recovered from your possession. On this
instant case FIR No. 214/2018 U/S 8/21/22 NDPS Act
was registered at P/S Rajbagh and investigation was
entrusted to SHO P/S Rajbagh Inspector Davinder
Singh. After completion of all required/ legal
formalities in the instant case and the investigation of
case was closed as Challan was produced before the
Hon'ble Court on 12-11-2018 for judicial determination.
5. FIR No. 157/2019 U/S 8/21/22 NDPS Act of P/S
Kathua:-
On 16/05/2019 ASI Kuldeep Kumar of P/S Kathua
along with police party was on patrolling duty when
reached near Kalibari Shar Khan Bridge found you
along with your associate and after seeing the police
party you along with your associate tried to ran away
towards housing colony. But police party with the help
of other police officials surrounded you and captured
you. On preliminary enquiry you disclosed your name
as Daljeet Singh S/o Tarlochan Singh R/o Legate Morh
and the name of your associate as Sumit Sharma S/0
Rakesh Kumar R/o Tandyari, Marheen. During the
personal search total 9.35 Grams Heroin was recovered
from your possession and from the possession of your
associate. On this instant case FIR No. 157/2019 U/S
8/21/22 NDPS Act was registered and investigation
entrusted SI Ved Parkash of P/S Kathua. After
completion of all required/ legal formalities in the
instant case and the investigation of case was closed as
Challan was produced before the Hon'ble Court on 24-
12-2019 for judicial determination.
Keeping in view your continuous and repeated
involvement in narcotic substance cases, Sr.
Superintendent of Police, Kathua vide letter No. PA-
2022/PSA/3925-30dated 19.04.2022 has recommended
that you may be detained under the provisions of The
Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988.
From above facts and circumstances, it is evident that
you are drug peddler involved in possession and
transportation of Narcotic Drugs and Psychotropic
Substances, which as per Section 2 of The Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 means "illicit traffic". Such "illicit
traffic" poses serious threat to the health and welfare of
the people of Union Territory of J&K at large.
Now, therefore, with a view to prevent you from further
committing any offence of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances and to secure the
health and welfare of public at large, I have reached to
the conclusion that it has become imperative to detain
you U/S 3 of The Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act,
1988".
Detention record further demonstrates that the order of
detention dated 25.04.2022 has been served upon the
petitioner/detenue on 26.04.2022 without any delay, whereby,
copies of detention order (02 leaves), Notice of detention (01
leaf), grounds of detention (04 leaves), dossier of detention (06
leaves), copies of FIRs, statements of witnesses and other
related relevant documents (10 leaves), total 23 leaves have
been handed over/furnished to the petitioner/detenue through
Executing officer, Sh. O.P.Chib Police Inspector No.ESJ-
955634 of Police Station Kathua and receipt thereof has been
given by the petitioner/detenue by writing his name in English
which clearly indicates that the petitioner understands English
language also. Moreso, the execution report depicts that the
contents of detention warrant and grounds of detention have
been read over to the petitioner/detenue in English and also
explained to him in Hindi/Dogri language which he fully
understands and in lieu thereof petitioner has appended
signature on the execution report. In view of the detailed
record submitted by the respondents, it is discernable, that the
petitioner/detenue has been supplied whole of the detention
record/essential material so as to enable him to make a
effective representation against the said detention order before
the Government or Detaining Authority and therefore, no right
much less any right of the petitioner guarantee to him under
Article 22 (5) of the Constitution of India r/w Section 13 of
Public Safety Act has been violated. Case law relied upon by
the learned counsel for the petitioner titled Hamraz Singh vs.
UT of Jammu & Kashmir [WP (Crl.) 55/2021] is clearly
distinguishable and inapplicable to the facts of the case in
hand. Arguments of learned counsel for the petitioner that non-
supply of record/documents/ essential material to him in
regard to his detention violating/infringing his fundamental
right and debarring him from making an effective
representation are far from reality, legally unsustainable,
repelled, rejected and discarded.
7. The next argument urged by learned senior counsel for the
petitioner is, that there is unexplained delay in passing the
order of detention from the date the proposal was sent to
detaining authority by respondent No. 4-SSP Kathua and on
that count even the detention order requires to be quashed.
From the perusal of the record, it is clearly
gatherable that respondent No. 4-SSP Kathua has supplied the
dossier to respondent No. 2 on 19.04.2022 and after perusal of
the dossier and all connected record, respondent No. 2 vide
impugned detention order No. PIT NDPS-4 of 2022 dated
25.04.2022 has issued the detention order within 06 days
without any unnecessary delay in exercise of powers vested in
him under Section 3 of The Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act 1988 r/w
SRO 247 of 1998 dated 27.07.1988 whereby the petitioner has
been detained and ordered to be lodged in Central Jail Kot-
Bhalwal Jammu for a period to be specified by the
Government. On passing of the impugned detention order
dated 25.04.2022, without any delay on 26.04.2022, the
detention order has been served upon the petitioner/detenue in
Central Jail Kot Bhalwal Jammu by the Executing officer, Sh.
O.P.Chib Police Inspector No.ESJ-955634 of Police Station
Kathua. The detention record (Annexure R-3) further
demonstrates that the Government of Jammu and Kashmir
Home Department Civil Secretariat Jammu/Kashmir vide its
order issued by Sh. R.K.Goyal, Financial Commissioner
(ACS) Home dated 27.05.2022 clearly depicts that as per the
information of Advisory Board dated 23.05.2022 under sub-
clause (b) of Section 9 of the Public Safety Act sufficient
ground has been found for detention of the petitioner/detenue,
therefore Sh. R.K.Goyal, Financial Commissioner (ACS)
Home in exercise of powers conferred under clause (f) of
Section 9 read with Section 11 of The Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act,
has confirmed the impugned detention order No. PIT NDPS-4
of 2022 dated 25.04.2022 passed by respondent No. 2 whereby
petitioner/detenue has been detained for a period of one (01)
year. There has been no delay in execution of the detention
order upon the petitioner. In Sushanta Kumar's case (supra)
relied upon by learned senior counsel for the petitioner,
Hon'ble Supreme Court quashed the detention order on the
ground that there was unexplained delay and it took five (05)
months for the detaining authority to pass the order of
preventive detention. Ratio of the judgment (supra) relied upon
by the learned senior counsel for the petitioner is
distinguishable and inapplicable to the facts of the case in
hand. In the case in hand, without any delay the impugned
detention order has been passed by respondent No. 2 on
25.04.2022 and served upon the petitioner/detenue on
26.04.2022, whereas, there is even no unnecessary delay in
passing the detention order by respondent No. 2 from the date
of receipt of dossier and other documents on 19.04.2022 from
respondent No. 4. Respondent No. 2 after careful perusal of
the detention record and by application of mind came to the
conclusion that the petitioner/detenue is engaged in repeated
illicit traffic in Narcotic Drugs and Psychotropic Substances
cases, posing serious threat to the health and welfare of the
people and in order to prevent him from committing any
further criminal act of narcotic traffic it is necessary to detain
him on the basis of the grounds mentioned in the dossier. As
many as six days time has been taken by the respondent No. 2
in passing the order of detention on 25.04.2022 from the date
of receipt of the dossier from respondent No. 4 on 19.04.2022,
as such, there is no unnecessary delay in passing the order of
detention. The arguments put forth by the learned senior
counsel for the petitioner that huge delay has been caused in
passing the impugned detention order and executing the same
upon the petitioner, are legally unsustainable and accordingly
rejected.
8. Although right of personal liberty is most precious right,
guaranteed under the Constitution, which has been held to be
transcendental, inalienable and available to a person
independent of the Constitution, yet the personal liberty may
be curtailed, where a person faces a criminal charge or is
convicted of an offence and sentenced to imprisonment. A
person is not to be deprived of his personal liberty except in
accordance with procedure established under law and the
procedure as laid down in Maneka Gandhi vs. Union of India,
(1978 AIR SC 597), is to be just and fair. 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 defence.
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 is to
save the 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 reason, necessary to
take preventive measures and prevent the 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.
9. The essential concept of preventive detention is that the
detention of a person is not to punish him for something he has
done, but to prevent him from doing it. The basis of detention
is the satisfaction of the executive of a reasonable probability
of likelihood of detenue acting in a manner similar to his past
acts and preventing him by detention from doing the same.
The Supreme Court in Haradhan Saha vs. State of W.B. (1975)
3 SCC 198, points out that a criminal conviction, on the other
hand, is for an act already done, which can only be possible by
a trial and legal evidence. There is no parallel between
prosecution in a Court of law and a detention order under the
Act. One is a punitive action and the other is a preventive act.
In one case, a person is punished to prove his guilt and the
standard is proof, beyond reasonable doubt, whereas in
preventive detention a man is prevented from doing
something, which is necessary for reasons mentioned in the
Act, to prevent.
10. Article 22 (5) of the Constitution of India and Section 13 of
the J&K Public Safety Act 1978, guarantee safeguard to
detenue to be informed, as soon as may be, of grounds on
which order of detention is made, which led to the subjective
satisfaction of detaining authority and also to be afforded
earliest opportunity of making representation against order of
detention. Detenue is to be furnished with sufficient particulars
to enable him to make a representation, which on being
considered, may obtain relief to him. Detention record, made
available by learned counsel for respondents, reveals that
detention order was made on proper application of mind, to the
facts of the case and detenue was delivered at the time of
execution of detention order, the material and grounds of
detention and also informed that he had a right to represent
against his preventive detention. Perusal of detention order
depicts its execution. It further reveals that the copy of
detention warrant, grounds of detention, notice of detention,
copy of dossier etc. were received by the petitioner-detenue
which were read over and explained to detenue in
English/Hindi languages, which detenue understood fully in
token of which the signatures of detenue had been obtained. It
also divulges that detenue was informed that he can make
representation to the government and detaining authority. The
grounds of detention are definite, proximate and free from any
ambiguity. The detenue has been informed with sufficient
clarity what actually weighed with Detaining Authority while
passing detention order. Detaining Authority has narrated facts
and figures that made the authority to exercise its powers
under Section 8 J&K Public Safety Act 1978 and record
subjective satisfaction that detenue was required to be placed
under preventive detention in order to prevent him from acting
in any manner prejudicial to the security of the State.
11. Further, although grounds of detention are by and large is
replica of dossier, yet one cannot lose sight of the fact that five
(05) FIRs have been lodged against the petitioner-detenue
under various sections of the NDPS Act which made basis to
book him under the Public Safety Act so as to prevent him
from acting in a manner similar to his past acts or engaging in
activities prejudicial to security of the State or maintenance of
public order. Further, the sponsoring authority has not only
supplied the material, viz; dossier, containing gist of the
activities of the detenue, but has also supplied the material in
the shape of FIRs. All this material was before the detaining
authority when it arrived at subjective satisfaction that
activities of the detenue were prejudicial to maintenance of
public order and requires preventive detention of detenue.
Further, if in any given case a single act is found to be not
sufficient to sustain the order of detention that may well be
quashed, but it cannot be stated as a principle that one single
act cannot constitute the basis for detention. On the contrary, it
does. In other words, it is not necessary that there should be
multiplicity of grounds for making or sustaining an order of
detention. The same views and principles were reiterated by
the Apex Court in Goutam Jain vs. Union of India, AIR 2017
SC 230. In the present case, the petitioner-detenue seems to be
a hard core criminal and has become a terror figure among the
people of the area as against him five FIRs came to be
registered in different police stations under various sections of
the NDPS Act between the period 2016 to the year 2019. Since
the actions taken against the petitioner-detenue under the
ordinary law from time to time have not been proved to be
deterrent, as such the respondents had no other option but to
keep him in preventive detention.
12. Personal liberty is one of the most cherished freedoms,
perhaps more important than the other freedoms guaranteed
under the Constitution. It was for this reason that the Founding
Fathers enacted the safeguards in Article 22 in the Constitution
so as to limit the power of the State to detain a person without
trial, which may otherwise pass the test of Article 21, by
humanizing the harsh authority over individual liberty. In a
democracy governed by the rule of law, the drastic power to
detain a person without trial for security of the State and/or
maintenance of public order must be strictly construed.
However, where individual liberty comes into conflict with an
interest of the security of the State or public order, then the
liberty of the individual must give way to the larger interest of
the nation. These observations have been made by the
Supreme Court in The Secretary to Government, Public (Law
and Order-F) and another vs. Nabila and another (2015) 12
SCC 127.
13. In the present case the petitioner has been involved in many
criminal activities and against him five (05) FIRs viz; (i) FIR
No. 93/2016, (ii) FIR No. 12/2017, (iii) FIR No. 142/2017, (iv)
FIR No. 214/2018 and (v) FIR No. 157/2019 under various
Sections of the NDPS Act have been registered in different
police stations in District Kathua. FIR No. 93/2016 U/S 8-
B/21/22 NDPS Act is registered with Police Station Kathua
and recovery of 10gms of Heroin has been affected from the
petitioner, in FIR No. 12/2017 U/S 8/21/22 NDPS Act
registered with Police Station Lakhanpur recovery of 4.50 gms
of Heroin has been affected from the petitioner, in FIR No.
142/2017 U/S 8/21/22 NDPS Act registered with Police Statio,
Kathua recovery of 06 gms of Heroin has been affected from
the petitioner, in FIR No. 214/2018 U/S 8/21/22 NDPS Act
registered with Police Station Rajbagh (Kathua) recovery of
which 05 gms of heroin has been affected from the petitioner
whereas in FIR No. 157/2019 U/S 8/21/22 NDPS Act of P/S
Kathua recovery of 9.35 gms of Heroin like substance has
been affected from the petitioner. From the bare perusal of the
FIRs and the allegations therein against the petitioner, it is
discernable, that the petitioner is a hardcore criminal, has
become a terror figure among the people of the area, the
actions taken against him under ordinary law from time to time
have not been proved to be deterrent. It seems that
petitioner/detenue instead of mending his ways has
continuously been indulging in criminal activities and has not
shown any respect for the law of the land, as such, the
petitioner/detenue has created a sense of alarm, scare and a
feeling of insecurity in the minds of the public of the area, has
become a chronic fear amongst the people of the area. Thus,
the activities of the petitioner are of hardcore criminal and
habitual of indulging in acts of illicit traffic in Narcotic Drugs
and Psychotropic Substances cases. The record so produced
reveals that the petitioner/detenue has been indulging in illegal
trade in an organized manner, which is a great threat for
sustaining the conservative values of the society and the drug
trafficking also possess great threat to the society for the
reason that the proceeds of the drug sale can be utilized for
financing of other criminal activities, hence, petitioner has
been rightly detained by Respondent No. 2.
14. For the foregoing discussion, the petition sans any merit and is
accordingly, dismissed along with connected application(s), if
any.
15. Registry to return the detention record against proper receipt.
(Mohan Lal)
Judge
Jammu
31.01.2023
Bir
Whether the order is speaking? Yes/No
Whether the order is reportable? Yes/No
