Jammu & Kashmir High Court
Sajad Ahmed Butt vs Ut Of J & K Through Its Comm/Secretary ... on 31 August, 2024
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
HCP No. No. 103/2023
CM No. 7873/2023
Reserved on: 27.08.2024
Pronounced on:31.08.2024
Sajad Ahmed Butt, age 31 years, S/O Gulam Qadir Butt,
Through his wife-Parveena Begum, age 33 years
R/O Wanda Beoli, Tehsil & District Doda. .....Petitioner(s)
Through :- Mr. Yawar Javed, Advocate vice
Mr. Zulker Nain Sheikh, Advocate
v/s
1. UT of J & K through its Comm/Secretary (Home),
Civil Secretariat, Jammu.
2. The Divisional Commissioner, Jammu.
3. The Superintendent District Jail, Bhaderwah (Doda),
4. The Senior Superintendent of Police, Doda. .....Respondent(s)
Through :- Mr. Amit Gupta, AAG
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, passed the
detention Order No. PITNDPS 39 of 2023 dated 21.09.2023 (for short
'impugned order'), in terms whereof the petitioner namely Sajad Ahmed
Butt S/O Gulam Qadir Butt R/O Wanda Beoli, Tehsil and District Doda
(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 22 of the
Constitution of India read with provisions of the PIT NDPS Act. 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 may pose a serious
threat to the health and welfare of the people, but without application of
mind and without considering the material on record respondent-detaining
authority passed the impugned detention order which is illegal, unjustified,
unwarranted under law and as such the same is liable to be quashed; that
the detaining authority has not specified the authority before whom the
representation has to be made and same amounts to violation of a cherished
constitutional and statutory right of the petitioner. Petitioner has also
alleged 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
the PIT NDPS Act.
3. Respondents in their counter affidavit, rebutted the petitioner's submissions
stating stated that the detenue was ordered to be detained under the
provisions of the 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 continued involvement in criminal
activities. It is also being stated that the petitioner is involved in numerous
criminal activities/drug peddling, smuggling engaged in the sale and
purchase of illicit traffic in narcotic drugs and psychotropic substances,
which pose 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 disregard towards the
substantive law, it has become inevitable to detain him preventively.
4. Mr. Yawar Javed learned counsel for the detenue, while being heard,
making 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, Doda, 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 in District Jail, Bhaderwah. It is also submitted stated
that the detenue is not an English literate person and understands Urdu
language only but the order of detention is in English and it is not possible
for him to comprehend such a hyper technical language. 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 complete set of documents/ 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. In
addition, learned counsel submitted that the petitioner has been bailed out
in two cases whose FIRs have been made basis by the detaining authority
to pass the detention order and no application for cancellation of his bail
was filed by the police concerned.
5. Mr. Amit Gupta learned AAG, appearing 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 whole of 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.
6. Heard learned counsel for both the sides at length, perused the record and
considered.
7. The right of personal liberty is most precious right guaranteed under the
Constitution. It has been held to be transcendental and inalienable
right available to a person. 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. 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.
8. 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.
9. The detention record, as produced, reveals that the detenue was involved in
following cases registered at Police Station, Doda vide:-
(i) FIR No. 159/2021 U/S 8/20 NDPS Act;
(ii) FIR No. 153/2023 U/S 8/20 NDPS Act; and
(iii) DD Report No.11 dated 27.08.2023 of PP District Hospital Doda.
Involvement of the detenue in the aforementioned cases appears to have
heavily weighed with the detaining authority while passing detention order.
10. 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."
11. 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."
12. 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 imperiling the welfare of the
country or the security of the nation or from disturbing the
public tranquility 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."
13. 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. The contention
of the learned counsel that whole of the material which had been based to
pass the impugned detention order had not been furnished to the detenue, as
such, he had been incapacitated from making a meaningful and effective
representation against his detention seems to be untenable in view of the
fact that in the communication dated 21.09.2023 addressed to the petitioner
by the detaining authority, the petitioner has not only been made aware of
his right to file a representation to the Government of J&K as well as to the
detaining authority against his detention order, if he so desires, but along
with this communication, 43 leaves of the material including order of
detention, grounds of detention, dossier, statements and other documents
were supplied to him, as such, this contention is belied on the basis of
record produced by the respondents. The contention that the petitioner was
only conversant with the Urdu language and not with the English language
in which the detention order was passed relying upon the material which
also was in English language, is also not tenable in view of the fact that the
petitioner had signed in English as token of receipt the execution of warrant
when the detention order along with other material was supplied to him,
which clearly means that the petitioner was conversant with the English
language.
14. 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 narcotic traffic. The detaining authority
has informed detenue that he is an accused in three 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.
15. 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. Even global community is
facing serious consequences of drug abuse and Narco-terrorism which
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 all of us.
16. 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 acts 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.
17. 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.
18. Detention record, as produced, be returned to the learned AAG.
(M A Chowdhary)
Judge
JAMMU
31.08.2024
Vijay
Whether the order is speaking: Yes
Whether the order is reportable: Yes
