Jammu & Kashmir High Court - Srinagar Bench
Jahangir Ahmed Dar vs Union Territory Of J&K Through on 12 February, 2024
Author: Chief Justice
Bench: Chief Justice
Sr. No.
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
[Through Video Conferencing]
CJ Court
Case:- LPA No. 12/2023 in Reserved on: 01.02.2024
WP(C) No. 732/2022 Pronounced on:12.02.2024
Jahangir Ahmed Dar, aged 27 years .....Appellant(s)
S/O Bashir Ahmad Dar
R/O Tulkhun Bijbehara
Tehsil Bijbehara, District Anantnag
Through :- Mr. Usman Gani, Advocate
v/s
1. Union Territory of J&K through .....Respondent(s)
Principal Secretary to Government,
Home Department, Civil Secretariat,
Srinagar/Jammu.
2. Divisional Commissioner Kashmir,
Srinagar.
3. Superintendent of Police,
District Jail Poonch.
4. Senior Superintendent of Police,
Anantnag.
5. Station House Officer, Police Station,
Bijbehara.
Through :- Mr. Sajjad Ashraf, Dy AG
CORAM: HON‟BLE THE CHIEF JUSTICE
HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
Per Chowdhary J
1. This intra court appeal has been preferred by the appellant Jahangir Ahmed
Dar against the judgment/order dated 30.12.2022 passed by the learned
Single Bench of this Court in a Writ Petition WP(Crl) No. 732/2022 titled
„Jahangir Ahmed Dar vs UT of J&K & Ors,‟ whereby his plea to quash
Order No. DIVCOM-K/279/22 dated 19.10.2022 (for short „detention
order‟) passed in terms of the Prevention of Illicit Trafficking in Narcotic
Drugs and Psychotropic Substances Act 1988 by the Divisional
Commissioner Kashmir (hereinafter called „the Commissioner‟).
2. The appellant/petitioner vide detention order dated 19.10.2022, had been
directed to be detained in preventive custody, in terms of Section 3 of the
Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic
Substances Act 1988 by the Commissioner. The appellant/petitioner while
challenging the order passed by the Commissioner had contented in his
petition that he had been implicated falsely in case FIR No. 04/2021 for the
commission of offences punishable under sections 8/20 NDPS Act and in
that case he had been admitted to bail by the Court of learned 1 st Additional
Sessions Judge, Srinagar, besides plea that he was suffering from ailments
of constipation and bleeding. The detention order was also assailed that the
grounds of detention were vague on the basis of which no prudent man can
make an effective representation and if the impugned order of detention is
allowed to be executed, the same will result in grave economic crisis to the
petitioner as he may loose his job; that no fresh activity as alleged in the
grounds of detention and that the impugned order has been passed in hot
haste.
3. The respondents filed their reply before the writ Court asserting that the
appellant/petitioner was a hardcore drug peddler who had been
instigating/motivating immature youth in his area to indulge in drug
addiction and drug peddling and that in view of the past conduct of the
appellant/petitioner having immoral and illegal criminal tendencies, he had
been directed to be taken into preventive custody, with further allegation
that he was trading in narcotic substances, sells the same to youth, drivers
and college going students, as such, his activities were required to be
curbed.
4. The learned Single Judge vide impugned judgment after discussing and
relying upon the law laid down in "Government of India & Ors vs Alka
Subhah Gadia, (1992) Supp (1) SSC 496" and "Subhash Popatlal Dave
vs Union of India & Anr., reported as (2012) 7 SCC 533", rejected the
plea of the appellant/petitioner for quashing of the order of detention
impugned in the writ petition.
5. The appellant/petitioner having been aggrieved of the order impugned
passed by the learned Single Judge challenged the same through the
medium of this appeal, on the grounds that the grounds of challenge
pleaded in the Writ Petition were not appreciated as no reference has been
made thereof; that the judgment is perverse both on facts and law; that note
of the fact that the last alleged activity was in the month of March 2021,
whereas the order of detention was passed in October 2021; that the
appellant/petitioner was already on bail at the time of passing of the
detention order which clearly reflected non-application of mind on the part
of the Detaining Authority to most of the material and vital facts vitiating
the requisite satisfaction; that there was no justification with the Detaining
Authority to pass the detention order that there being no live link or any
fresh activity; that the learned Single Judge has not appreciated the
important issues involved in the matter and passed the impugned order
contrary to the well settled principles of law and that the detention order
passed on 19.10.2022 had not been executed till date nor the respondents
have taken any steps to seek execution of detention order in accordance
with law despite the fact that the appellant/petitioner was all along
available for execution as well as bound by the order of trial Court wherein
he was facing trial in the case registered against him.
6. Since the respondents have not filed objections to the main petition and had
only responded to the interim application, the respondents on filing of this
appeal filed reply asserting therein that in order to collect huge returns in
short span of time, the appellant/petitioner had become a member of drug
mafia/drug syndicate; that he had been apprehended in case FIR No.
04/2021 under Section 8/20 NDPS Act registered at Police Station
Kothibagh; that the activities of the appellant/petitioner posed a serious
threat to the health and welfare of the people of the area as his designs and
conducts to lure the youth and school going children into menace of drugs
have made the life of peace living citizens vulnerable and caused scare
among their parents; that the report received from the field agencies
depicted that the appellant/petitioner was associated and clandestinely
dealing in illegal business of narcotic substances and out of the illegal
trade, he had been exploiting the immature minds of the younger
generation by making them habitual addicts; that the drug mafia with
which the appellant/petitioner is associated poses a great threat to the
society as from the proceeds from the drugs sale, other criminal activities
can also be financed; that the activities of the appellant/petitioner were
highly prejudicial and cause adverse affects in the society, his remaining at
large involves great risk and maintenance of public order, as such, the
petitioner/appellant was rightly ordered to be detained vide order impugned
in the writ petition by the Commissioner, who was appointed as an
authorised officer by the government.
7. The respondents have further submitted that the detention order/warrant
issued against the appellant/petitioner was directed to be executed and as
per the report furnished by SHO Police Station Kothibagh, extensive efforts
were made to carry out the aforementioned warrant as the police team led
by Mushtaq Ibrahim was deputed to the native village of the appellant/
petitioner on different dates, who took help of some of the officers from
Police Station Bijbehara, conducted raids at his residence, however, he was
neither found at his home nor within the jurisdiction of Police Station
Bijbehara; that his family did not provide any information to the police
team regarding his whereabouts, whereas the local Lamberdar Ghulam
Nabi Dar confirmed that the detenue had not visited his home and was not
seen in the vicinity; that another police team headed by ASI Mushtaq
Ahmad raided the home place of the appellant/petitioner on 06.05.2023 and
conducted search, however, he was not found present and the SDPO
Bijbehara and SHO Bijbehara have been requested to closely monitor the
appellant/petitioner‟s activities and promptly inform the authorities of his
whereabouts, if spotted anywhere with an aim to ensure the execution of
the pending detention warrant against the appellant/petitioner.
8. Learned counsel for the appellant/petitioner has vehemently argued that the
appellant/petitioner has been alleged to be an active member of drug
mafia/syndicate by the sponsoring agency, whereas the fact of the matter is
that there was just one case registered against him and the Detaining
Authority without any application of mind had relied upon the dossier
prepared by the police concerned for passing the detention order. He has
further argued that the appellant/petitioner had been detained on vague
grounds and his detention has also been ordered in the month of October
2022 relying upon the involvement of the appellant/petitioner in a case of
NDPS Act, registered against him in the year 2021, as such, the detention
order has been passed on a stale incident with no proximate or live link
between the activities of the appellant/petitioner and the detention order.
He has further argued that the appellant/petitioner had been admitted to bail
in the case and after his release, he was not involved in any of the activities
and the learned Commissioner while passing the detention order had not
considered this aspect of the matter, as even he has not stated anything in
his detention order with regard to admission on bail of the
appellant/petitioner in that case. As such, these facts do indicate that the
Detaining Authority had not applied its mind properly while depriving the
appellant/petitioner of his liberty, which is a cherished constitutional right
in terms of Article 21 of the Constitution of India. Learned counsel for the
appellant/petitioner in support of his submissions, has relied upon the law
laid down by the Apex Court in the judgments reported as (2023) 9 SCC
587; (2008)16 SCC 14; AIR 2022 SC 4715; (2012) 2 SCC 72 and by
Hon‟ble Delhi High Court in AIR Online 2022 DEL 592.
9. Learned counsel for the respondents, ex adverso, argued that the appellant
was a hardened criminal involved in illegal business of Narcotics and in
order to carry out this illegal trade, exploiting the immature minds of the
younger generation by making them dependent on drugs and to make them
habitual addicts regarding which the case has been registered against him in
the year 2021 and the Detaining Authority, after evaluating the relevant
record placed before him, had passed the detention order in the public
interest for the maintenance of public peace and order. He further argued
that the writ court has rightly decided the petition filed by the appellant by
an elaborate judgment, addressing all the aspects raised by the appellant,
therefore, the same does not call for any interference while exercising the
appellate jurisdiction by this Bench.
10. Heard learned counsel on both sides, perused and considered.
11. In a judgment, in case titled Ameena Begum vs State of Telangana &
Ors, reported as (2023) 9 SCC 587, the Hon‟ble Apex Court has observed
that "the right of life and personal liberty is placed on such a high pedestal
by the Court that it has always insisted that, whenever, there is any
deprivation of life or personal liberty, the authority responsible for such
deprivation must satisfy the Court that it has acted in accordance with the
law. This is an area where the Court has been most strict and scrupulous in
ensuring observance with the requirements of law, and even where a
requirement of the law is breached in the slightest measure, the court has
not to hesitate to strike down the order of detention or to direct the release
of the detenue even though the detention may have been valid till the
breach occurred. The Court has always regarded personal liberty as the
most precious possession of mankind and refused to tolerate illegal
detention, regardless of the social cost involved in the release of a possible
renegade."
12. In the judgment titled Deepak Bajaj vs State of Maharashtra & Anr,
reported as (2008) 16 SCC 14, the Hon‟ble Apex Court has observed that
"if a person against whom a preventive detention order has been passed
comes to Court at the pre execution stage and satisfies the Court that the
detention order is clearly illegal, there is no reason why the Court should
stay its hands and compel the petitioner to go to jail even though he is
bound to be released subsequently (since the detention order was illegal).
As already mentioned above, the liberty of a person is a precious
fundamental right under Article 21 of the Constitution and should not be
likely transgressed. Hence in our opinion Smt. Alka Subhash Gadia's case
(supra) cannot be construed to mean that the five grounds mentioned
therein for quashing the detention order at the pre execution stage are
exhaustive".
13. In another case titled Sushanta Kumar Banik vs State of Tripura and
others, reported as AIR 2022 SC 4715, relied upon by learned counsel for
the appellant/petitioner, the Apex Court has observed that "the adverse
effect of delay in arresting a detenu has been examined by this Court in a
series of decisions and this Court has laid down the rule in clear terms that
an unreasonable and unexplained delay in securing a detenu and detaining
him vitiates the detention order. In the decisions we shall refer hereinafter,
there was a delay in arresting the detenu after the date of passing of the
order of detention. However, the same principles would apply even in the
case of delay in passing the order of detention from the date of the
proposal. The common underlying principle in both situations would be the
"live & proximate link" between the grounds of detention & the avowed
purpose of detention"
14. A similar view has been taken by the Hon‟ble Supreme Court in
Rushikesh Tanaji Bhoite Vs. State of Maharashtra & Ors. reported as
(2012) 2 SCC 72, wherein, it has been observed that :-
"9. In a case where detenue is released on bail and is
enjoying his freedom under the order of the court at
the time of passing the order of detention, then such
order of bail, in our opinion, must be placed before the
detaining authority to enable him to reach at the
proper satisfaction.
10. In the present case, since the order of bail dated
August 15, 2010 was neither placed before the
detaining authority at the time of passing the order of
detention nor the detaining authority was aware of the
order of bail, in our view, the detention order is
rendered invalid. We cannot attempt to assess in what
manner and to what extent consideration of the order
granting bail to the detenue would have effected the
satisfaction of the detaining authority but suffice it to
say that non-placing and non-consideration of the
material as vital as the bail order has vitiated the
subjective decision of the detaining authority."
15. In the judgement in a case titled Abhishek Gupta vs Union of India &
Ors, reported as AIR Online 2022 DEL 592, rendered by Delhi High
Court, it has been held in Paras 4 and 14 as under:
4. It is pertinent to note that the impugned Preventive
Detention Order is yet to be served on the petitioner.
Further, it was observed by this Court vide order dated
22.07.2019 that despite the detention order, which has
been rendered on 26.03.2019, the same was not executed
upon the petitioner on behalf of the official respondents,
and in these circumstances no coercive action be taken
against the petitioner.
14.To appreciate the contentions raised by the petitioner as
well as the respondents, the following issues need to be
considered.
(i) Whether non placement of the fact before the Detaining
Authority that the subject four firms which are alleged
to be operated/controlled by the petitioner were placed
in Denied Entry List (Blacklist) vide order dated
21.12.2018 and 24.12.2018, prior to passing of the
detention order, vitiates the subjective satisfaction of
the Detaining Authority in issuing the detention order;
(ii) Whether the detaining authority or the executing
agency or sponsoring authority were diligent to serve
the detention order on the petitioner at the earliest
despite being available for service since the detention
order was passed on 26.03.2019 and the petitioner had
appeared before the Ld. CMM on 28.03.2019 and
05.04.2019 after the passing of the impugned detention
order;
(iii) Whether the publication of the impugned order on
21.05.2019 under section 7(1)(b) of the COFEPOSA Act
was mechanical, alleging that petitioner is absconding
or concealing himself to avoid execution of the
impugned detention order and if the detention order is
liable to be set aside for unexplained delay in service of
detention order.
16. The contention of learned counsel for the appellant/petitioner that there
was no proximate or live link between the activities of the
appellant/petitioner and the detention order is concerned, we are of the
view that the delay cannot be said to be such an inordinate so as to say that
the link in the meanwhile snapped so as to vitiate the detention order. The
non-reflection of granting of bail in favour of the appellant/petitioner is
also not fatal to the detention order as it had been sufficiently recorded by
the Commissioner while ordering the detention that he was arrested and
involvement in the commission of case regarding which the FIR has been
registered. The contention with regard to vague grounds is also out of
relevance as there is a specific allegation against the appellant/petitioner
that he was arrested while having in his possession some narcotic and that
the discreet reports of the field agencies, also revealed that he was involved
in the Illicit Trafficking of Narcotic Drugs and Psychotropic Substances,
which is a serious issue effecting the UT of J&K.
17. Having regard to the geo-political location of the UT of Jammu & Kashmir
bordering hostile neighbouring Countries, which have been pushing drugs
to this part of the Country not only for illegal trade but to use the proceeds
thereof in the sustenance of cross border terrorism, so the menace of drugs
in this part of Country has to be seriously looked into having its wider
ramifications as smuggling and trade of the narcotics will not only
destabilize the economy of the area but shall also be detrimental to the
national interest if the proceeds of illegal trade are used to sustain the
terrorism.
18. The next contention of the learned counsel for the appellant/petitioner that
the detention order has not been executed despite availability of the
detenue seems to be incorrect, as the respondents have placed on record the
reports of two police teams which have been deputed to execute the
warrant/order of detention against him and their reports indicated that he
was neither available at his home nor in his area, as such, despite efforts by
the police, he has evaded the arrest warrant by absconding. The learned
Single Judge has also recorded in his judgment that the appellant/petitioner
had not been even facing trial before the trial Court after being admitted to
bail, which also strengthens the view that the appellant/petitioner had been
absconding to evade the execution of detention order. The contention of
the learned counsel that the appellant/petitioner had not appeared before
the trial Court just on one date, as he was indisposed and admitted in
hospital also seems to be incorrect, as it appears from the record produced
by the appellant/petitioner that he had been admitted in a hospital at
Anantnag on a day and discharged very next day and then again had gone
there for follow up but before the detention order was passed. Therefore,
the contention for being not available due to bad health and disease is not
sufficient so as to justify the absence of appellant/petitioner from evading
the execution of detention order. The learned Single Judge has rightly
observed in the judgment that the disease of which the appellant/petitioner
was suffering was just constipation and bleeding, which in no manner
could be a risk to his life, as such, even being in custody, his healthcare
can be taken care of.
19. Having regard to the foregoing discussion and the reasons analyzed
hereinabove, we do not find any perversity or illegality in the judgment
passed by the learned Single Judge, as all the important aspects as were
required had been dealt with.
20. The appeal for the aforestated rea sons is found to be without any merit
and substance and is, thus, dismissed along with pending application(s).
(M A CHOWDHARY) (N. KOTISHWAR SINGH)
JUDGE CHIEF JUSTICE
JAMMU
12.02.2024
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
