Bilal Ahmad Kand vs Ut Of J&K & Another
2023 Latest Caselaw 1318 j&K/2

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR
                                                  Reserved on: 09.10.2023
                                                  Pronounced on:13.10.2023

                            WP(Crl) No.752/2022

BILAL AHMAD KAND                                     ...PETITIONER(S)

       Through: - Mr. Huzaif Ashraf, Advocate.

Vs.

UT OF J&K & ANOTHER                              ...RESPONDENT(S)
       Through: -     Mr. Sajad Ashraf, GA.


CORAM:HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE


                                    JUDGMENT

1) The petitioner through the medium of this petition has impugned the

order of detention bearing No.DIVCOM-"K"/277/2022 dated 19.10.2022,

issued by respondent No.2, whereby the petitioner has been detained under

Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988 (hereinafter referred to as "the Act").

2) The petitioner has impugned the order of detention on the following

grounds:

(I) That the grounds of detention are extremely vague due to which the petitioner has been deprived of his statutory right of making effective representation against the impugned order of detention;

(II) That the petitioner was arrested in the month of June, 2022, under NDPS Act and was granted bail vide order dated 22.09.2022 but the respondent No.2

has passed the order impugned oblivious to the factum of grant of bail;

(III) That the material relied upon by the detaining authority while issuing the impugned order has not been furnished to the petitioner.

3) The reply stands filed by the respondents wherein it has been stated

that the petitioner was arrested in FIR No.36/2022 under Section 8/22 of

the NDPS Act of Police Station, Rainawari. The activities of the petitioner

were found to be prejudicial to the health and welfare of the people of the

area as he had started motivating the youth for consumption of the drugs,

so as to increase his earnings. The order of detention was executed by the

Executing Officer, namely, ASI Abdul Aziz and the petitioner was handed

over to Superintendent, District Jail, Rajouri, for lodgement. It is further

stated that the contents of the detention order/warrant and the grounds of

detention were read over and explained to the detenue in the language

which he fully understood and in lieu whereof, he subscribed his signatures

on the execution report. The petitioner was well informed about his right of

making representation to the detaining authority and to the Government

against his detention. It is further averred that the respondents in the

process, have complied with all statutory and constitutional provisions and

followed all requisite formalities and have not violated any of them. The

Government also has confirmed the order issued by the respondent No.2.

4) Mr. Huzaif, learned counsel for the petitioner submitted that the

petitioner has not been provided with the documents relied upon by the

detaining authority and further the impugned detention order has been

passed oblivious to the fact that the petitioner was granted bail in FIR

No.36/2022.

5) Per contra, Mr. Sajad Ashraf, GA, submitted that the petitioner was

detained as he was motivating the youth for consumption of drugs and he

was an active member of the drug mafia indulging in illegal business of

sale of drugs. He further submitted that all the procedural safeguards as

provided under the Act and Constitution have been complied with while

issuing the impugned order of detention.

6) Heard and perused the detention record produced by learned counsel

for the respondents.

7) The record depicts that the Senior Superintendent of Police, Srinagar,

submitted a dossier on 24.09.2022 to the respondent No.2 thereby stating

that the petitioner after his release from custody in FIR No.36/2022 under

Section 8/22 NDPS Act and Sections 147, 148, 149, 353, 506 IPC of Police

Station, Rainawari, did not give up his nefarious activities of selling and

indulging in illegal trade of narcotics and by placing reliance upon the said

dossier and other documents comprising of FIR, seizure memo and the

memo of weighing the contraband, the respondent No.2 passed the order of

detention. The detention warrant was executed on 22.10.2022 and the

contents of the detention warrant and the grounds of detention were read

over and explained to the petitioner in Urdu/Kashmiri language. Further the

copy of detention warrant and the copy of grounds of detention were

provided to the petitioner and he was also informed that he can make a

representation to the Government against his detention. In the Execution

Report and receipt of detention warrant, there is no whisper that the

petitioner was provided with dossier, copy of FIR, seizure memo and the

memo of weighing of contraband. Rather in the receipt of detention

warrant, it has been mentioned that total five leaves i.e. detention warrant

(01 leaf), grounds of detention (04 leaves), were provided to the petitioner,

though the perusal of the grounds of detention reveals that the same

comprises of two pages only. The dossier comprises of five leaves. Thus, it

is evident that whole of the material relied upon by the detaining authority-

respondent No.2 has not been provided to the petitioner which vitiates the

order of detention. Failure on the part of the respondent No. 2 to supply

whole of the material relied upon by him to the petitioner while issuing the

order of detention, renders it illegal. Reliance is placed upon the decision

of Apex Court in Thahira Haris v. Government of Karnataka, (2009) 11

SCC 438, the relevant para is reproduced as under:

"30. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention."

8) Further the perusal of the docket placed on record by the petitioner

not disputed by the respondents reveals that the petitioner was granted bail

in FIR No.36/2022 UNDER Section 8/20 NDPS Act, 147, 148, 341, 153,

506 IPC of Police Station, Rainawari, vide order dated 22.09.2022, whereas

the Senior Superintendent of Police, Srinagar, vide communication dated

24.09.2022 submitted the dossier to the respondent No.2 for detaining the

petitioner under the Act, stating therein that after his release, the petitioner

has again indulged in nefarious activities of trade in narcotics, meaning

thereby that even after release in the above mentioned FIR on 22.09.2022,

the petitioner had indulged in illicit activities. This is hard to believe,

particularly in view of vague averments made in the grounds of detention

in respect of involvement of the petitioner in the sale of drugs after his

release on 22.09.2022 that he indulged in nefarious activities of trade in

narcotics for one day as the dossier was forwarded on 24.09.2022.

9) In view of the above, the impugned detention order is not sustainable

in the eyes of law and is, accordingly, quashed. The respondents are

directed to release the petitioner from the preventive detention forthwith,

provided he is not involved in any other case.

10) The detention record be returned to learned counsel for the

respondents.

(Rajnesh Oswal) Judge SRINAGAR 13.10.2023 "Bhat Altaf, PS"

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