Mohd Tahir vs Union Territory Of J Ammu & Kashmir ...
2023 Latest Caselaw 1035 j&K

Sr.No.3

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU

WP (Cri) No. 81/2022

Reserved on --: 13.04.2023
Pronounced on : 22.05.2023

Mohd Tahir, Age 32 Years S/o Abdul Salam R/o_ ....Petitioner(s)/Appellant(s)

Kote Behrote Tehsil Thannamandi District

Rajouri, (presently lodged in District Jail,

Rajouri).

Through :- Mr. Ajaz Chowdhary, Advocate
V/s

1. Union Territory of j ammu & Kashmir ie gwoush
...Respondent(s)

3. The Superintendent, District Jail, R
Through :- Mr Bhanu Jasrotia, GA

JUDGMENT

. Respondent no.2, Divisional Commissioner Jammu (hereinafter called as 'Detaining Authority') in exercise of powers under Section 3 of the Prevention of Ulicit Traffic in Narcotic Drugs and Psychotropic Substance Act 1988 r/w SRO 247 of 1998 dated 27.07.1988 has passed detention Order No. PIT NDPS 35 of 2022 dated 18.11.2022 (for short 'the impugned order') in terms whereof

the petitioner/detenue has been detained.

. Aggrieved of the detention order, petitioner has questioned it's legality, proprietary and correctness by the medium of instant petition under Article 226 of the Constitution of India and has sought it's setting aside/quashment on the ground, that the perusal of grounds of detention shows that there is a reference of FIR No. 193/2019 of Police Station Thannamandi u/s 8(A)/20/60 NDPS Act, FIR No. 05/2021 u/s 8/21/22 of NDPS Act of Police Station Surankote, FIR No. 62/2021 u/s 8(A)21/22/29 NDPS Act of P/S Thanamandi, complaint u/s 107/ 110/151 Cr.PC dated 30-06-2019 of Police Station Thannamandi and confidential report of DSB Rajouri dated 27.10.2022, but the copies of the above

said FIRs, statements of witnesses recorded u/s 161 Cr.pc, seizure memos etc.

material documents in regard to the complaint u/s 107/110/151 Cr.pce and other

relevant documents have never been provided to the petitioner, non-supply of

bo

WP (Cri) No. 81/2022

essential material has debarred the petitioner from making effective representation which constitute infraction of valuable right of the petitioner guaranteed to him under Article 25(5) of the constitution of India r/w Section 13 of J&K PSA 1978 which makes the order of detention invalid and legally unsustainable.

. 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 has been detained for his repeated and continuous involvement in the Illicit Traffic of 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, the relevant record made available by SSP Rajouri 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 who was informed about his right to make representation to the Government as well

as to the detaining authority against the order of detention.

. Mr. Ajaz Chowdhary, learned counsel appearing for the petitioner/detenue, 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, recovery memo, statements of witnesses recorded under Section 161 Cr.P.C to enable him to make effective representation against the impugned detention order, by not supplying the essential material petitioner/detenue's right to make 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 to supply the essential material vitiates whole of the detention order.

To support his arguments, learned counsel has relied upon the judgment of

Homble Supreme Court reported in, AIR 2000 SC 2504 [State of Maharashtra & Others--Appellants Versus Santosh Shankar Achariya--Respondent].

. Mr. Bhanu Jasrotia, learned GA 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 three FIRs and one complaint viz; FIR No. 193/2019 of Police Station Thannamandi u/s 8(A)/20/60 NDPS Act, FIR No. 05/2021 u/s 8/21/22 of NDPS Act of Police Station Surankote, FIR No. 62/2021 u/s 8(A)21/22/29 NDPS Act of P/S Thanamandi, complaint u/s 107/110/151 Cr.PC dated 30-06-2019 of Police Station Thannamandi and confidential report of DSB Rajouri dated 27.10.2022, wherein from his possession contraband charas/heroine has been recovered on different dates of occurrences. It is argued, that 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.

It is moreso argued, that petitioner/detenue has no respect for law and order and

public tranquility causing serious threats prejudicial to the security of UT of J&K, keeping in view the continuous and repeated involvement of the petitioner/detenue in the narcotic trade, respondent No. 3 vide his endorsement No. PA/PSA/2022/10911-15/C dated 11.11.2022 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, the 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 r/w SRO 247 dated 27.07.1988. It is argued, that as per the detention

record the petitioner has been supplied all the essential detention record

including the copies of detention order (02 leaves), grounds of detention (03 leaves) and other related relevant documents [Total 05 leaves] through Executing Officer MAan Singh PSI EXJ-196565 of P/S Thannamandi, moreso, the impugned detention order has been read over in English and explained to the petitioner/detenue in Urdu/Pahari 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 desires, the order of detention has been passed by respondent No. 2 on 18.11.2022 and the same has been executed upon the petitioner without any delay.

I have heard learned counsel for the parties, perused the averments of the petition, counter affidavit filed by the respondent No. 2, detention record made

available by the respondents and the relevant law on the subject matter coupled

with the judgments relied upon by learned counsel for petitioner.

. The argument canvassed by Ld. Counsel for petitioner for quashment of

detention order is, "that the detenue/petitioner has not been supplied the copies

of FIRs registered against him and. statements of witnesses recorded under

Section 161 CrP.C to enable him to make effective representation against the

impugned detention order, for non-supplying of such material, petitioner's right

to representation against his detention has been infringed/violated in terms of

Article 22 (5) of Constitution of India r/w Section 13 of Jammu and Kashmir

Public Safety Act 1978, vitiating the detention order."

In AIR 2000 SC 2504, (State of Maharashtra and Ors.-

Appellants Vs. Santosh Shankar Acharya- Respondent) relied upon by

learned counsel for the petitioner, Hon'ble Supreme Court while quashing the

detention order by observing that detenue was not supplied the copies of the

material from which the detention order was made amounted to denial of

representation to him and infraction of his valuable constitutional right

guaranteed to him under Article 22(5) of Constitution of India, in para (8) held

as under:-

8. If the contention of Mr. Deshpande to the effect that the moment an order of detention issued by an order under sub-section (2) of Section 3 of the Act is communicated to the State Government under sub-section (3) of the said Section thereof the State Government becomes the detaining authority, and therefore, the power under Section 21 of the Bombay General Clauses Act cannot be exercised by the said detaiming authority is correct, then it has to be found out as to under which contingency Section 14 of the Maharashtra Act

would apply. To our query neither Mr. Deshpande nor Mrs. Ramani, learned counsel appearing for the State Government could indicate any situation when such power could be exercised. It is too well known a principle of construction of statutes that the legislature engrafted every part of a statute for a purpose and the legislative intention is that every part of the statute should be given effect. The legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. We are cognizant of the principle ex majori cautela but it is difficult for us to apply the said principle to Section 14 of the Maharashtra Act and even hold the same to be tautologous in as much as it has never been shown as to what was the necessity for the legislature to protect the power under section 21 of the Bombay General Clauses Act, to an order of detention made under the Maharashtra Act. The only logical and harmonious construction of the provisions would be that in a case where an order of detention is issued by an officer under sub-section (2) of Section 3 of the Act, notwithstanding the fact that he is required to forthwith report the factum of detention together with the grounds and materials to the State Government and notwithstanding the fact that the Act itself specifically provides for making a representation to the State Government under Section 8(1), the said detaining authority continues to be the detaining authority until the order of detention issued by him is approved by the State Government within a period of 12 days from the date of issuance of detention order. Consequently, until the said detention order is approved by the State Government the detaining authority can entertain a representation from a detenu and in exercise of his power under the provisions of Section 21 of Bombay General Clauses Act could amend, vary or rescind the order, as is provided under Section 14 of the Maharashtra Act. Such a construction of powers would give a full play to the provisions of Section 8 (1) as well as Section 14 and also Section 3 of the Maharashtra Act. This being the position, non-communication of the fact to the detenu that he could make a representation to the detaining authority so long as the order of detention has not been approved by the State Government in a case where an order of detention is issued by an officer other than the State Government under sub-section (2) of Section 3 of the Maharashtra Act would constitute an infraction of a valuable right of the detenu under Article 22(5) of the Constitution and the ratio of the Constitution Bench decision of this Court in Kamlesh Kumars case (supra) would apply notwithstanding the fact that in Kamlesh Kumar's case (supra) the Court was dealing with an order of detention issued under the provisions of COFEPOSA.

Ratio of the judgment (supra) makes the legal proposition manifestly clear, that non-supply of essential documents/material basing the issuance of detention order deprives the detenue from making effective representation before the detaining authority or the Government which is an infraction of the Constitutional right of the detenue as guaranteed to him under Article 22(5) of Constitution of India r/w Section 13 of J&K Public Safety Act which invalidates the detention order and makes it legally unsustainable. Ratio of the judgment (supra) squarely applies to facts of the case in hand. In the case in hand,

detention record demonstrates that the order of detention dated 18-11-2022 has

been served upon petitioner/detenue without any delay and the petitioner has been provided 2 leaves of copies of detention order, 3 leaves of grounds of detention (total 5 leaves) through executing officer Maan Singh PSI No. EXJ- 196565 of Police Station Thanamandi (Rajouri). The allegations against petitioner/detenue are, that he is indicted in case FIR No. 193/2019 of Police Station Thannamandi u/s 8(A)/20/60 NDPS Act, FIR No. 05/2021 u/s 8/21/22 of NDPS Act of Police Station Surankote, FIR No. 62/2021 u/s 8(A)21/22/29 NDPS Act of P/S Thanamandi, complaint u/s 107/110/151 Cr.PC dated 30-06- 2019 of Police Station Thannamandi and confidential report of DSB Rajouri dated 27.10.2022. Detention record depicts that copies of FIRs, copies of statements of prosecution witnesses recorded u/s 161 Cr.pc, copies of seizure memos of the contraband in the above FIRs, copies of site plans, copies of the complaint registered against petitioner/detenue which form basis of the grounds of detention of petitioner have not been provided to him. Non-supply of the aforesaid detention material to the petitioner/detenue has infringed/violated his right to make effective representation against his detention before the Govt. or detaining authority which is serious infraction of the constitutional right guaranteed to the petitioner/detenue under Article 22(5) of the Constitution of India r/w Section 13 of the J&K Public Satety Act 1978, the same invalidates the

detention order and makes it legally unsustainable.

. For what has been discussed above, instant petition is allowed and the detention order No. PIT NDPS-35 of 2022 dated 18-11-2022 issued by respondent No.2 (Divisional Commissioner Jammu) for detention of petitioner is quashed. Petitioner shall be released from preventive custody forthwith if not wanted in any other case. Detention record be returned to Ld. Counsel for respondents

under proper receipt.

. Disposed off accordingly.

Srinagar (Mohan Lal) 22.05.2023 Judge Issaq

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No