Anit Kumar vs Ut Of J & K& Ors
2023 Latest Caselaw 975 j&K

                                                                          Sr. No.



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         ATJAMMU

                                                  WP (Crl) No. 75/2022

                                                  Reserved on: 10.05.2023
                                                  Pronounced on:16.05.2023

Anit Kumar                                                          .....Petitioner(s)

                                Through :- Mr. Mehtab Gulzar, Advocate


                          v/s

UT of J & K& Ors.                                                 .....Respondent(s)

                                Through :- Mr. Sunil Malhotra, GA


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

                                  JUDGMENT

1. Divisional Commissioner, Jammu (hereinafter called „Detaining

Authority‟) in exercise of powers under Section 3 the Prevention of Illicit

Traffic in Narcotic Drugs and Psychotropic Substance Act 1988 (PIT

NDPS Act) r/w SRO 247 of 1998 dated 27.07.1998, passed the detention

Order No. PITNDPS 11 of 2022 dated 12.09.2022 (for short „impugned

order‟), in terms whereof the petitioner namely Anit Kumar S/O Hem Raj

Sharma R/O Village Latori Kundrorian Tehsil Katra District Reasi (for

short „detenue‟), has been detained.

2. The impugned detention order has been challenged through the medium of

the instant petition, being in breach of the provisions of Article 226 of the

Constitution of India read with provisions of PIT NDPS Act.

3. It is being pleaded in the petition that the detention order so passed against

the petitioner was not addressed to detenue which shows the callousness

and non-application of mind on the part of the detaining authority-

respondent No.2; that the detaining authority has not mentioned a word in

the detention order with regard to the satisfaction drawn by it as to how it

has come to the conclusion of passing the detention order. Furthermore, it

is stated that the petitioner has not committed any offence nor he is

involved in the commission of any offence under the NDPS Act which

pose a serious threat to the health and welfare of the people, but the

respondents without the application of mind and without considering the

material on record had issued and passed the impugned detention order

which is illegal, unjustified, unwarranted under law and as such the same is

liable to be quashed. It is also the submission of learned counsel for the

detenue that the order of detention and the connected documents annexed

with the petition clearly show violation of right of the detenue guaranteed

in terms of Article 22(5) of the Constitution of India and the provisions of

PIT NDPS Act.

4. Respondents in their counter affidavit have stated that the detenue was

ordered to be detained under the provisions of Prevention of Illicit Traffic

in Narcotics Drugs and Psychotropic Substances Act, 1988 and had he been

let free there would have been every likelihood of his re-indulging in

criminal activities. It is also being stated that the petitioner is involved in

numerous criminal activities/drug peddler/habitual smuggler engaged in the

sale and purchase of illicit traffic in narcotic drugs and psychotropic

substances, which poses a serious threat to the lives of young generation of

the country and even to the economy of the UT. It is further submitted that

the repeated and continuous involvement of the detenue, in the illicit

trafficking of drugs and psychotropic substances and his disrespectful

attitude towards the substantive law, it has become inevitable to detain him

preventively.

5. Learned counsel for the detenue, while being heard, makes reference to the

grounds of the detention, would argue that on a cursory look on the same it

is manifest that same are vague. It is also submitted that the Detaining

Authority on the basis of dossier submitted by Senior Superintendent of

Police, Reasi, without application of mind and without evaluating the

allegations made against the detenue in the said dossier, copy of which was

not even provided to the detenue, proceeded to pass impugned detention

order, whereby the detenue has been detained and directed to be lodged at

Central Jail Kot Bhalwal, Jammu. It is also submitted that the Detaining

Authority has not mentioned in the detention order that the detenue has

right to make representation against the order of detention and has not

supplied the copies of the documents/FIRs and material relied upon by the

Detaining Authority, so that the petitioner could make effective and

meaningful representation against the detention order to the government, as

such, the detention order is liable to be quashed.

6. Learned counsel for the respondents, ex adverso, submits that the record

reveals that there is no vagueness in the grounds of detention. All the

procedural safeguards prescribed under Act and the rights guaranteed to the

detenue under the Constitution have strictly been followed in the instant

case. The detenue has been furnished all the material, as was required, and

was also made aware of his right to make representation to the detaining

authority as well as government, against his detention.

7. Heard learned counsel for both the sides at length and considered the

record.

8. The right of personal liberty is most precious right guaranteed under the

Constitution. It has been held to be transcendental, inalienable

and available to a person. A person is not to be deprived of his/her personal

liberty except in accordance with procedures established under law and the

procedure as laid down in Maneka Gandhi v. Union of India (1978 AIR SC

597), is to be just and fair. The personal liberty may be curtailed, where a

person faces a criminal charge or has been convicted of an offence and

sentenced to imprisonment. Where a person is facing trial on a criminal

charge and is temporarily deprived of his/her personal liberty because of

the criminal charge framed against him/her, has an opportunity to defend

himself/herself and to be acquitted of the charges in case the prosecution

fails to bring home his/her guilt. Where such a person is convicted of the

offence, he/she still has the satisfaction of having been given adequate

opportunity to contest the charge and also adduce evidence in his/her

defence.

9. Nevertheless, 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 having been held guilty of an

offence and sentenced to imprisonment by a competent court. The 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/her plans, exposing the general public to risk and cause

colossal damage to life and property. It is, therefore, necessary to take

preventive measures and prevent the person bent upon perpetrating

mischief from translating his/her ideas into action. Article

22(5) Constitution of India therefore leaves scope for enactment of

preventive detention law.

10. The detention record, as produced, reveals that the detenue was involved in

following cases registered at Police Station, Katra vide:-

(i) FIR No. 122/2018 U/S 8/21/22 NDPS Act;

(ii) FIR No. 22/2019 U/S 8/21/22 NDPS Act;

(iii) FIR No. 53/2022 U/S 8/21/22 NDPS Act; and

(iv) FIR No. 233/2022 U/S 8/21/22 NDPS Act.

Involvement of the detenue in the aforementioned cases appears to have

heavily weighed with the detaining authority while passing detention order.

Even in aforementioned two FIRs viz FIR No. 122/2018 and FIR No.

22/2019 of Police Station, Katra, the detenue was convicted and has

sentenced to payment of fine of Rs. 3000/- and Rs.5000/-respectively.

11. The Hon‟ble Apex Court in the judgment rendered in the case of

"Hardhan Saha v. State of W.B" [(1975) 3 SCC 198], has succinctly

pointed out difference between preventive and punitive detention in the

following words:

"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 the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. 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 it is necessary for reasons mentioned in section 3 of the Act to prevent."

12. The conceptual framework of preventive detention has been reiterated

in "Khudiram Das v. State of W.B", [(1975) 2 SCR 832], as under:

"The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment.

It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof."

13. In "Naresh Kumar Goyal v. Union of India", [(2005) 8 SCC 276], the

Court observed:

"It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperilling the welfare of the country or the security of the nation or from disturbing the public tranquillity or from indulging in 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 something but to intercept before he does it, and to prevent him from doing so."

14. Perusal of detention record reveals that detenue at the time of execution of

detention was provided copy of the detention order, copy of the grounds of

detention and other material. The detenue, as record would reveal, was also

informed as regards making of representation against the detention order if

he so desired, both to detaining authority and Government.

15. The grounds of detention are definite, proximate and free from any

ambiguity. The detenue has been informed with sufficient clarity what

actually weighed with the detaining authority while passing detention

order. The detaining authority has narrated facts and figures that made it to

exercise its powers under Section 3 of the Prevention of Illicit Traffic in

Narcotic Drugs and Psychotropic Substance Act, 1988, and record

subjective satisfaction that detenue was required to be placed under

preventive detention in order to prevent him from committing any of the

acts within the meaning of illicit traffic. The detaining authority has

informed detenue that he is an accused in four cases, involving illegal

trafficking of narcotic substances, which poses serious and great threat to

the society particularly health, wealth and welfare of the people especially

young generation. So viewed, the detenue is not to be heard saying that any

of his Constitutional and Statutory rights have been violated while

detention order in question was slapped on him and thereafter executed.

16. The instant case relates to illicit trafficking of narcotic drugs and

psychotropic substances. The drug problem is a serious threat to public

health, safety and well-being of humanity. Our global community is facing

serious consequences of drug abuse and it undermines the socio- economic

and political stability and sustainable development. Besides, it also distorts

the health and fabric of the society and it is considered to be the originator

for petty offences as well as heinous crimes like smuggling of arms &

ammunition and money laundering. The involvement of various terrorist

groups and syndicates in drug trafficking leads to threat to the national

security and sovereignty of States by the way of Narco-terrorism. The drug

trafficking and abuse has continued its significant toll on valuable human

lives and productive years of many persons around the globe. With the

growth and development of world economy, drug traffickers are also

seamlessly trafficking various type of drugs from one corner to other

ensuring the availability of the contrabands for vulnerable segment of the

society who fall into the trap of drug peddlers and traffickers. Due to

India's close proximity with major opium growing areas of the region, India

is facing serious menace of drug trafficking and as a spill- over effect, drug

abuse especially among the youth is a matter of concern for us.

17. In view of the foregoing discussion, it is clearly disclosed that it is not a

number of acts that are to be determined for detention of an individual but

it is impact of the act which is material and determinative. In the instant

case the act of detenue relates to drug trafficking, which has posed serious

threat, apart from health and welfare of the people, to youth, most

particularly unemployed youth, to indulge in such acts, ramifications

thereof would be irreversible and unimaginable. Petitioner has not been

able to convincingly point out violation of any statutory or constitutional

provisions.

18. Having regard to the facts and circumstances of the case and discussion

made hereinabove, the petition is found to be devoid of any merit and

substance and is liable to be rejected. The petition is thus dismissed and the

impugned order relating to preventive detention of the petitioner is upheld.

19. Detention record, as produced, be returned to the learned GA.

(M A Chowdhary) Judge JAMMU 16.05.2023 Vijay

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