Aijaz Ahmad Najar vs Ut Of J&K And Anr
2023 Latest Caselaw 1271 j&K/2

                                                                      Sr. No. 30
                                                                      Suppl.

     IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR
                            WP(Crl) No. 396/2022
                            CrlM No. 1644/2022

                                                            Reserved on: 11.05.2023
                                                          Pronounced on: 06.10.2023


Aijaz Ahmad Najar                                        ...Petitioner(s)/Appellant(s)

Through:     Mr. Mir Firdous, Advocate

                                       Vs.
UT of J&K and Anr.                                                 ...Respondent(s)

Through:     Mr. Sajad Ashraf, GA.

CORAM:

HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
                                  ORDER

06.10.2023

1. The petitioner came to be subjected to loss of his personal liberty by resort to preventive detention ordered by the Divisional Commissioner, Kashmir, acting in exercise of power vested under the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short ITNDPS Act).

2. The detention of the petitioner came to be effected by virtue of an order No. DIVCOM-"K"/230/2022 dated 10.05.2022 passed by the Divisional Commissioner, Kashmir. It is this preventive detention of the petitioner which is being questioned through the medium of the present writ petition under Article 226 of the Constitution of India for seeking its quashment.

3. The preventive detention of the petitioner came to be premised by the Divisional Commissioner, Kashmir, acting upon a dossier served by the Senior Superintendent of Police (SSP), Pulwama, vide No. CS/PSA/NDPS/2021/DPO/149-52 dated 24.11.2021 followed by a subsequent letter dated 23.04.2022 accompanied by the relevant record.

4. On the basis of the dossier so served by the SSP, Pulwama, the Divisional Commissioner, Kashmir came to formulate grounds of detention for effecting the preventive detention of the petitioner. In the said ground of detention, the factual basis upon which the petitioner's activities were held to be deserving his detention were relatable to one FIR no. 209/2021 registered with the Police Station Rajpora alleging that the petitioner was found to be in possession of 20 numbers of codeine bottles which amounted to commission of offence under Section 8/20 & 29 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act).

5. Thus, this FIR came to be a base for the Divisional Commissioner, Kashmir, to serve him with a presumption that the petitioner is not an accused but a person convicted and as such, deserves punishment not by way of punitive detention but by preventive detention. In the grounds of detention, there is no reference to the fact as to whether the petitioner has been admitted to bail or not and what is the status of the case in terms of investigation of the FIR No. 209/2021. Thus on half baked facts the personal liberty of the petitioner was put to peril.

6. In the grounds of detention, the Divisional Commissioner, Kashmir has not referred to the contents of the subsequent letter dated 23.04.2022 received by him from the Superintendent of Police (SSP), Pulwama, about which reference is made in the order of detention.The petitioner came to be detained and lodged in District Jail, Bhaderwah.

7. In the light of aforesaid basis, the detention of the petitioner so effected by the Divisional Commissioner, Kashmir is nothing but taking the jurisdiction of preventive detention as a matter of pleasure detention available at the command of the Divisional Commissioner, Kashmir, under ITNDPS Act as if registration of one FIR under the NDPS Act against a person is essential enough for a detaining authority to trigger preventive detention against an accused under given FIR notwithstanding the final outcome of the criminal case which may even result in acquittal. The detention of the petitioner thus is bad in the eyes of law and deserves quashment. It is accordingly quashed.

8. The petitioner should be set to liberty in case if he has not been released on expiry of his detention period. In case, the petitioner is suffering any pending arrest/custody in any other case or FIR above mentioned, then the custody of the petitioner be handed over to the concerned by the Superintendent District Jail Bhaderwah to the concerned police authority, and if there is no such arrest or custody required against the petitioner then he be set free to his liberty.

9. Copy of this judgment be forwarded to the District Superintendent District Jail Bhaderwah for compliance.

(RAHUL BHARTI) JUDGE SRINAGAR:

06.10.2023 Junaid