Jammu & Kashmir High Court
Tahir Hussain Shah vs < on 10 May, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr.
No.101
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No.53/2023
Reserved on: 07.05.2024
Pronounced on: 10.05.2024
Tahir Hussain Shah, Age 32 years, S/o ...Petitioner(s)
Faquir Hussain Shah, R/o Khablan, Tehsil
Thanamandi, District Rajouri. At present
lodged in District Jail, Dangri Rajouri
through his wife Sayed Affia Gulani, age
29 years, W/o Tahir Hussain, R/o Khablan,
Tehsil Thanamandi, District Rajouri.
Through :- Mr. M. Zulkarnain Chowdhary, Advocate.
V/s
<
1. The Union Territory of J&K through its .....Respondent (s)
Additional Chief Secretary/Financial
Commissioner (Home),
Civil Secretariat, Jammu-180001.
2. The Divisional Commissioner, Jammu.
3. The Senior Superintendent of Police,
Rajouri.
4. The Superintendent, District Jail,
Dangri Rajouri.
5. The Station House Officer/Incharge,
Police Station, Thanamandi.
't
Through :- Ms Chetna Manhas, Advocate vice
Mr. Amit Gupta, AAG.
Coram:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioner, Tahir Hussain Shah S/o Faquir Hussain Shah R/o Khablan,
Tehsil Thanamandi, District Rajouri (hereinafter referred to as „detenue‟), has
challenged Order No.PITNDPS 21 of 2023 dated 19.07.2023 passed by
Divisional Commissioner Jammu (hereinafter referred to as „detaining
authority‟) whereby he has been taken into preventive custody in terms of
Section 3 of The Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (hereinafter referred to as „PITNDPS
Act‟).
2. It has been contended by the petitioner that the impugned order of detention
has been passed by the detaining authority without application of mind
inasmuch as the grounds of detention do not make any mention about the fact
that the petitioner has been granted bail in both FIRs, which are referred to in
the grounds of detention. It has been further contended that the petitioner was
already facing criminal prosecution in both the cases which are mentioned in
the grounds of detention and there were no compelling circumstances for the
detaining authority to pass the impugned order of detention. The petitioner
has gone on to contend that the constitutional and the statutory safeguards
have not been adhered to by the respondents while detaining the petitioner in
terms of the impugned order. In this regard, it has been submitted that the
material forming basis of grounds of detention has not been furnished to the
petitioner and that his representation against the impugned order of detention
has not been considered.
3. The petition has been resisted by the respondents by filing a counter affidavit.
In their counter affidavit, the respondents have submitted that the petitioner
has been repeatedly found involved in illicit trafficking and despite having
been booked in substantive offences he has, after obtaining the bail orders,
continued to indulge in similar activities. It has been further submitted that the
petitioner has been provided the whole of the material forming basis of the
grounds of detention and even the grounds of detention have been explained to
him in Hindi/Urdu/Pahari languages. Regarding the representation, the
respondents have admitted having received a representation against the
impugned order of detention. It has been contended that all the statutory and
constitutional safeguards have been adhered to by the respondents at the time
of execution of the warrant of detention upon the petitioner.
4. I have heard learned counsel for the parties and perused the record of the case
as well as the detention record produced by the respondents.
5. The first argument that has been advanced by learned counsel for the
petitioner is that there is non-application of mind on the part of the detaining
authority in formulating the grounds of detention as it is not mentioned therein
that the petitioner has been enlarged on bail in both the FIRs, referred to in the
grounds of detention.
6. In this regard, a perusal of the grounds of detention reveals that there is
reference to two FIRs; i) FIR No.127/2017 for offences under Sections
8/22/60 NDPS Act registered with police Station Thanamandi and ii) FIR
No.58/2023 for offences under Sections 8(A)/21/22/29 NDPS Act registered
with Police Station Thanamandi. It is recorded in the grounds of detention
that challan in FIR No.127/2017 has already been produced before the Court
whereas investigation in FIR No.58/2023 is still going on. In the penultimate
paragraph of grounds of detention, it has been specifically mentioned that
despite being released on bail, the petitioner is still indulging in sale, purchase
and transportation of illicit drugs. Thus, it is clear that the detaining authority
was alive to the fact that the petitioner has been enlarged on bail in both the
aforesaid cases and this fact clearly finds mention in the grounds of detention.
Therefore, it cannot be stated that there has been any non-application of mind
on the part of the detaining authority.
7. It has been next contended that because the petitioner was already facing
trial/investigation in the offences registered against him, therefore, there was
no compelling reason for the detaining authority to pass the impugned order of
detention. In this regard, as already stated, the detaining authority has
recorded that even after being booked in substantive offences, the petitioner is
still indulging in illicit traffic of drugs after getting bail from the Court
meaning thereby that the detaining authority has, in view of the repeated and
continuous criminal activities of the petitioner, felt satisfied that normal
criminal law has not deterred the petitioner from indulging in illicit traffic of
drugs. It is a trite law that subjective satisfaction of the detaining authority
cannot be a subject matter of judicial review. Therefore, sufficiency or
otherwise of the material for deriving subjective satisfaction is the domain of
the detaining authority. The Court cannot sit in appeal or exercise its power of
judicial review in this regard. The contention of learned counsel for the
petitioner is therefore without any merit.
8. It has been contended that whole of the material which formed basis of the
grounds of detention has not been provided to the detenue. In this regard,
learned counsel for the petitioner has submitted that copy of the dossier has
not been supplied to the petitioner.
9. It is revealed from a perusal of the receipt alleged to have been executed by
the petitioner, copy whereof has been placed on record by the respondents
along with their counter affidavit, that he has received a copy of detention
warrant pertaining to impugned order of detention consisting of grounds of
detention and allied leaves along with Annexure-I and Annexure-II.
Annexure-I pertains to the documents relating to FIR No.127/2017; whereas
Annexure-II relates to documents pertaining to FIR No.58/2023. This means
that the petitioner has besides receiving documents relating to aforesaid two
FIRs, also received copy of detention warrant, copy of grounds of detention
and allied leaves. The expression "allied leaves" would include the copy of
dossier as well. The contention of learned counsel for the petitioner in this
regard is not supported by the detention record. The same deserves to be
rejected.
10. That takes us to the contention of the petitioner with regard to non-
consideration of his representation. In this regard, a perusal of the detention
record shows that the Advisory Board has considered the representation of the
petitioner which he had submitted though his wife and the same has been
rejected by the Board. Therefore, it is not a case where the representation of
the petitioner has not been considered. Contention in this regard, being
without any merit, is rejected.
11. For the foregoing reasons, I do not find any merit in this petition. The same is
dismissed, accordingly.
12. Detention record be returned to the concerned.
( Sanjay Dhar )
Judge
JAMMU
10.05.2024
Narinder
Whether the order is reportable? No
