Jammu & Kashmir High Court

Choudhary Asif Ali vs Union Territory Of J&K & Ors on 14 March, 2024

Author: Sindhu Sharma

Bench: Sindhu Sharma

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                           HCP No. 27/2023

                                                 Pronounced on 14.03.2024

Choudhary Asif Ali                                .... Petitioner/Appellant(s)

                        Through:-    Mr. Towkeer Qadri, Advocate

                  V/s

Union Territory of J&K & ors.                              .....Respondent(s)

                        Through:-    Mr. Amit Gupta, AAG

CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

                                JUDGMENT

01. Challenge in this petition is quashing to detention order No.

PITNDPS 06 of 2023 dated 15.03.2023 issued by the Divisional

Commissioner, Jammu under Section 3 of the Prevention of Illicit

Trafficking in Narcotic Drugs and Psychotropic Substances Act, 1988

detaining Choudhary Asif Ali, with a view to prevent him from

committing any of the acts within the meaning of illicit traffic. This order

of detention is assailed by the detenu through his brother-Azad Ahmed.

02. The detenu has challenged the legality and validity of the

detention order on the grounds that (i) the material forming basis of the

grounds of detention has not been supplied to him, thus, infringed his right

to make an effective representation; (ii) there is a delay of more than three

months in execution of the order dated 15.03.2023, thus, the detention is

vitiated and the delay in execution of the detention order has deprived the

detenu of his right to make an effective representation to the Detaining

Authority, which has resulted in an infraction of the rights as guaranteed

to the detenu. The detenu was already admitted to bail in FIR registered

against him in different Police Stations, and the Detaining Authority,

despite having knowledge about the registration of the cases and bail, has

not mentioned compelling reasons in the grounds of detention while

passing the order of detention. There was no application of mind while

detaining the detenu and as such, the same is liable to be quashed.

03. Mr. Amit Gupta, learned AAG has filed the counter affidavit

and produced the detention record. The respondents have filed their

counter affidavit in which it is submitted by them that the detenu was

detained under the provisions of the Prevention of Illicit Trafficking in

Narcotic Drugs and Psychotropic Substances Act, 1988, validly by virtue

of detention order dated 15.03.2023 issued by the District Magistrate,

Divisional Commissioner Srinagar. Detaining Authority has fulfilled all

the statutory requirements and Constitutional guarantees as provided to the

detenu. The grounds of detention, order of detention as well as entire

material relied upon by the Detaining Authority have been communicated

to the detenu and he was also informed of his right to make an effective

representation against the order of detention. The case of the detenu was

referred to the Advisory Board for its opinion and the Advisory Board

after considering the material placed before it has held that there is

sufficient cause for detaining the detenu, thus, after the opinion, the

Government confirmed the order of detention.

04. Heard learned counsel for the parties and perused the record.

05. The Divisional Commissioner, Jammu, on relying upon the

dossier submitted by the Senior Superintendent of Police, Jammu, held

that the detenu is a drug peddler involved in possession and transportation

of Drugs and Psychotropic Substances and presented a serious threat to the

health and welfare of the people of the Union Territory of J&K at large.

The detenu was continuous in the sale and purchase and transportation of

the illicit drugs, as such, to prevent him from committing any offence

under the Prevention of Illicit Trafficking in Narcotic Drugs and

Psychotropic Substances Act (for short, „Act of 1988‟) and to secure the

health and welfare of the public at large detained him under Section 3 of

the Act of 1988.

06. Learned counsel for the detenu has submitted that there is delay

in execution of the detention order which renders the detention

unsustainable in law. The detention order was passed on 15.03.2024,

however, as per the execution report which is relied upon by the

respondents, the same was executed on 08.06.2023. There is a delay of

three months‟ in executing the order of detention and the respondents in

their reply had failed to explain the delay in execution of the detention

order.

07. There should be live and proximate link between the detention

and its purpose, failing which, purpose of detention is lost in delay in

securing the detenu.

08. In Manju Ramesh Nahar vs. Union of India & others, reported as

AIR 1999 SC 2622, the Hon‟ble Apex Court has held as under:-

This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the "satisfaction‟ of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent."

In Imtiaz Ahmad Zargar vs. State of J&K & others, reported as

2003 (2) JKJ 76 (HC), this Court has held as under :-

"Thus what emerges is that delay gone unexplained. Consequence of failure to explain the delay needs no elaboration in view of the judgments which squarely cover the case in hand leaving no option for the Court but to quash the impugned order of detention. Held, inordinate delay in execution of the detention warrant especially when the detenue is available in custody is sufficient to quash the detention order."

09. In K. P. M Basheer vs. State of Karnataka and another, reported

as AIR 1992 SC 1353, the Hon‟ble Supreme Court has held that:

„How far argument of delayed execution helps the detenue needs to be appreciated in the light of the relevant events date- wise. Hon‟ble High Court of J&K in the below mentioned case has held:

"The arguments advanced at the bar have been considered. At the outset the breach of procedural safeguard enshrine in section 13 of the Act is detected. Tins section mandates that when a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, but not later than ten days from the date of detention communicated to him grounds on which the order has been made and afforded him the earliest opportunity of making a representation against the order to the Government. On the date when order was passed on 7-1-2000, the detenue admitted was in the custody of the respondents and the order was served on 24-01-2000. There is unexplained delay of six days for executing the impugned order. This basic

infirmity is a sufficient ground to vitiate the impugned order".‟

10. The right of personal liberty and individual freedom is one of the

most cherished rights and the same cannot be taken away without following

procedure prescribed by the law. The detenu has been able to satisfy the

unexplained delay in execution of the detention order has vitiated the same.

11. Keeping in view the aforesaid facts and circumstances, there is no

need to advert to other grounds raised in this petition and also in view of the

law laid down. This petition is allowed. Accordingly, detention Order No.

PITNDPS 06 of 2023 dated 15.03.2023, is quashed. The detenu is directed

to be released from custody forthwith if he is not otherwise required in any

other case.

12. Detention record be handed over to learned counsel for the

respondents by the Registry forthwith.