Jammu & Kashmir High Court - Srinagar Bench
Tawqeer Bashir Magray vs Government Of J&K & Others on 15 February, 2024
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
Sr. No.01
Regular List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No.178/2023 in
WP(Crl) No. 136/2023
Tawqeer Bashir Magray. ...Petitioner(s)/Appellant(s)
Through: Mr. Usman Gani, Advocate.
Vs.
Government of J&K & Others. ...Respondent(s)
Through: Mr. Sajad Ashraf, GA.
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
15.02.2024
The present appeal has been filed by the appellant who is aggrieved
by the order dated 24.08.2023 passed in WP (Crl) no. 136/2023 whereby his
Habeas Corpus petition challenged order dated 24.03.2023 passed under
section 3 under Prevention Of Illicit Traffic In Narcotic Drug And
Psychotropic Substances Act 1988 (hereinafter referred to as the Act), was
dismissed. The brief facts of the case are as follows:
1. The appellant was arrested in case FIR No. 04/2023 of Police
Station Sheeri, District Baramulla dated 30.01.2023 for offences
under Section 8/21 of the NDPS Act. As per the allegation in the
FIR, the Police while carrying out a routine check apprehended the
appellant and from his possession, seized 25 grams of contraband
which was analysed by the FSL as Heroine. Thereafter, the SP,
Baramulla vide recommendation dated 22.02.2023, recommended
the detention of the appellant under Section 3 of the Act and
forwarded the same to the Divisional Commissioner, Kashmir.
Pursuant to the said recommendation, the Divisional
Commissioner, Kashmir, passed the order of detention on
24.03.2023. The execution of the said order was on 29.03.2023. It
is pertinent to mention here that in the criminal case against the
appellant, bail has been granted by the learned Trial Court.
Undisputedly, there is only one case registered against the
appellant and 25 grams of Heroine seized from his is an
intermediate quantity.
2. Learned counsel appearing for the appellant submits that there has
been violation of law in as much as the detaining authority, in the
grounds of detention, has not taken into account whether the
appellant could be admitted to bail by the Court trying the criminal
case. He further submits that the recommending authority also did
not give the relevant information relating to the fact that the
appellant was in judicial custody at a relevant point of time. He has
also argued that the other grounds of detention are vague and did
not accord an adequate opportunity to the appellant to effectively
represent to the UT Government and therefore, due to the
vagueness in the grounds of detention, the impugned order was bad
in law. The grounds of detention are at Page 42 of the instant
appeal. It refers to the fact that the appellant was apprehended in
FIR no. 04/2023 by the personnel of Police Station Sheer on
30.01.2023 and that 25 grams of brown-sugar was recovered from
his possession. It also refers to the report of FSL which discloses
that the contraband was Diacetylmorphine (Heroine). This is the
first part of the grounds of detention which relates to the factual
aspect of the case and occupies one and a half pages of the grounds
of detention. In the remaining grounds, the detaining authority has
opined about the activities of the appellant who is a serious threat
to the health and the welfare of the area, as the appellant was
motivating the youth to consume the drugs in order to increase his
earnings. It also alleges that the appellant is an active member of a
Drug Mafia which is hell-bent upon spoiling the life and career of
the younger generation, by selling drugs. The said allegations by
itself is serious, however, in the material before us, there was
nothing to reflect that there has been any information given by
citizens of the locality to that effect. We had asked the learned
counsel for the UT of J&K to produce such material, if any, which
would substantiate the allegation in the first ground of detention.
Learned counsel appearing for the UT of J&K has placed before us
in a sealed cover the Dossier relating to the appellant. We have
gone through the Dossier which is in two parts, firstly, there are
documents which are in English which include the FSL report, the
report of the Superintendent of Police and the order of detention.
There were documents which were in Urdu which this Court got
them read over by the learned counsel for the UT. There were
statements of four Policemen. One of them has levelled allegations
against the appellant to the effect that he is influencing the youth of
the locality, that witness does not mention anything about the
source of information. We are cognizant of the fact that in such
cases, witnesses who may come forward to depose against such
individual are concerned about their own well-being and therefore,
it is essential to protect their identity. That could well have been
attained by the UT if it had mentioned date and time on which
persons would have disclosed information to the authorities but
without disclosing their names or addresses. The Dossier,
therefore, only reflects that one of the policemen has made an
allegation against the appellant which is not borne of his personal
knowledge as he does not state that the appellant had ever
approached him with the offer of selling drugs to him or had ever
asked him to consume the drugs. Therefore the prima-facie
material to substantiate the allegations that the appellant was
distributing drugs after taking hefty amount to immature youth in
the locality stands unsubstantiated. In other words, we are of the
opinion there was no material that was placed before the detaining
authority to form a subjective satisfaction to arrive at an opinion
that the allegation against the appellant of trying to influence the
youth of the area and selling drugs to them in all probability than
not, was true. The rest of the grounds are moral statements with
regard to the effect on the society and there is nothing else beyond
it.
3. Learned counsel for the UT of J&K while opposing the appeal has
stated that the material that was already on record was sufficient
for the detaining authority to arrive at a subjective satisfaction. He
has further argued that Section-6 of the Act lays down that the
grounds of detention are servable, in other words, learned counsel
for the UT of J&K has argued that even if one of the grounds are
not being considered by the detaining authority, it would not
render the order of detention unlawful. If the detaining authority
has considered the other grounds, and thereafter arrived at a
subjective satisfaction that the detention of the appellant is
essential, that by itself would be sufficient.
4. Having gone through the provisions of Section-6 of the Act, we
are in agreement with the learned counsel for the Union Territory
of J&K. Therefore, we hold that merely because one of the
grounds was not considered would by itself not go to vitiate the
impugned order. However, there must be substantial material
requiring the detention of the appellant under the Act. We say so,
as the Act in question does not result in every accused arrested
under the NDPS Act being detained as a preventive detention
measure under the Act in question. The reason why the Act was
legislated by the parliament was to deter such persons who were
habituated to committing offences under the NDPS Act and were
indulging in it as a business to enrich themselves. It was to ensure
that such cartels and mafia who were in the organised crime of
drug marketing on a large scale could be detained even if they
were enlarged on bail by the trial court for whatever reason. In this
regard, it is also essential to mention that even the rigors of the
Section 37 of the NDPS Act cannot take away the right of an
accused and where the constitution Court is of the opinion that
despite the rigors of Section-37 of the NDPS Act, a person has
been under trial for an inordinate period of time on account of
delay which is not attributed to the accused, then to enforce his
right under Article 21 the constitution Court can enlarge him on
bail, however, even if that happens, a person who is involved in a
cartel against whom there is sufficient material to form a subjective
opinion, can still be taken into custody and detained under the
provisions of this Act. When that is juxtaposed with the facts and
circumstances of the present case where admittedly there is only
one case against the appellant and besides that there is no other
history of the appellant having indulged in any other offence, and
that the seized contraband was an intermediate quantity of 25
grams of heroine and in the absence of material to show that he
was a threat to the society as he was indulging in selling drugs to
the youth or motivating youth to consume drugs, the impugned
order falls short of justification required to detain the appellant.
There are several judgment that were referred to by the learned
counsel for the appellant and by the learned counsel for the UT of
J&K. The law is no longer res-integra and this Court is aware of
the same. We are of the opinion that the order deserves to be
quashed purely on factual aspects which we have already heard
from the learned counsel for the parties, considered and held as
herein.
5. Therefore, the appeal succeeds, the order in appeal is set aside and
the appellant shall be released forthwith, if not wanted in any other
case.
,
6. The record of detention be given back to the learned counsel for
the UT in a sealed cover.
(MOKSHA KHAJURIA KAZMI) (ATUL SREEDHARAN)
JUDGE JUDGE
SRINAGAR:
15.02.2024
SHAISTA
