Parvaiz Ahmad Fashoo vs Ut Of J&K And Others
2024 Latest Caselaw 1609 j&K/2

Jammu & Kashmir High Court - Srinagar Bench

Parvaiz Ahmad Fashoo vs Ut Of J&K And Others on 24 October, 2024

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                  Regular
                                                                  S. No. 9


    HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR


                                HCP 187/2024

Parvaiz Ahmad Fashoo
                                                    ... Petitioner/Appellant(s)
Through: Mr. Wajid Mohammad Haseeb, Advocate

                       V/s
UT of J&K and others
                                                            ... Respondent(s)
Through: Mr. Ileyas Laway, GA

CORAM: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                 ORDER

24-10-2024 ORAL

1. The petitioner in the instant petition has challenged detention order

no. DIVCOM-"K"/114/2024 dated 01.05.2024 (for short "impugned

order") passed by respondent 2 (for short "detaining authority")

under and in terms of the provisions of the Prevention of Illicit

Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

(for short "Act of 1988").

2. The petitioner has challenged the impugned order on multiple

grounds urged in the petition.

3. Counter affidavit has been filed to the petition wherein the petition

has been opposed on the premise that the order under challenge has

been passed validly and legally by the detaining authority under the

Act of 1988 on account of drug-related activities the petitioner was

and has been found involved in, stating further that while detaining

the petitioner under the preventive detention in terms of the order

under challenge all statutory requirements and constitutional

guarantees came to be complied with and fulfilled.

Heard learned counsel for the parties and perused the record.

4. Before proceeding to advert to the petition in hand, it would be

appropriate and advantageous to refer to the scheme and object of the

Act of 1988.

5. Law is settled and no more res integra that the preventive detention

under the Act of 1988 is not punitive but preventive and that the Act

has been enacted in order to check the propensities of a detenue

indulging in an activity forbidden under the Act.

It is significant to mention here that in order to test the validity or

otherwise of a detention order passed under the Act of 1988, a court

is not required to interfere with the detention order when there has

been sufficient material placed before the detaining authority in this

regard on the basis of which the detaining authority has drawn its

subjective satisfaction thereof.

6. Keeping in mind the aforesaid position of law and reverting back to

the case in hand, perusal of the record available on the file in general

and the detention record produced by the counsel for the respondents

in particular would reveal that the detaining authority had been

furnished material by the Senior Superintendent of Police, Anantnag,

providing therein the antecedents of the petitioner as also his drug-

related activities consisting and comprising of, in particular the

involvement of the petitioner in various FIRs being FIR No. 129 of

2015 registered with Police Station Anantnag for offences under

Section 15/18 NDPS Act, FIR No. 28 of 2017 registered with Police

Station Achabal under Section 15/18 NDPS Act and FIR No. 67 of

2019 registered with Police Station Anantnag for offences under

Section 15/18 NDPS Act indicating that when the petitioner was

apprehended in the said FIRs, 30 kg poppy straw, 25 kg poppy straw

and 20 kg poppy straw respectively came to be recovered from his

possession besides furnishing to the detaining authority the details

about the current activities of the petitioner pertaining to the period

post his involvement in the aforesaid FIRs suggesting that the

petitioner is a notorious drug peddler having developed contacts with

the drug operatives in the area and having got involved in selling and

dealing in the drugs among the youth in the area, causing immense

adverse impact on the young generation in general and youth of the

area in particular.

Record also reveals that the detaining authority had been also

provided inputs about the fact that the petitioner had become an

active member of a large drug mafia involved in drug trafficking not

only in the local area of his residence, but also at the district-

level and in the surrounding areas of the district and in the process

has been affecting the health and safety of the people of the area in

general and that of district Anantnag in particular, besides adversely

affecting the local economy. The detention record produced by the

counsel of the respondents would also reveal that the petitioner has

been recorded as a history sheeter/drug peddler in police station

Anantnag.

The detention record produced by the counsel for the respondents

further tends to show that the impugned order came to be executed

by one ASI Mirakh Shah of police station Bejbihara against the

petitioner on 7th May 2024 well within the statutory time and also

came to be handed over the order of detention, notice of detention,

grounds of detention, dossier of detention consisting of 20 leaves.

The detention record also reveals that the executing officer has also

sworn an affidavit dated 8th May 2024 stating therein that the order

and grounds of detention came to be read over and explained to the

petitioner in Urdu/Kashmiri language which the petitioner fully

understood and in lieu thereof the petitioner executed a receipt as

well on 7th May 2024.

7. Having regard to the aforesaid facts obtaining in the matter inasmuch

as to the record available on the file, it is manifest that the detaining

authority has drawn its subjective satisfaction qua the drug related

activities of the petitioner and consequently on the basis of said

subjective satisfaction ordered the preventive detention of the

petitioner.

8. The court while testing the validity or otherwise of a detention order

cannot sit in appeal over the subjective satisfaction drawn by the

detaining authority. Record further reveals that there is seemingly no

lapse committed by the detaining authority while detaining the

petitioner in terms of the provisions of the Act of 1988 and

indisputably has fulfilled the constitutional guarantees available to

the petitioner in this regard. The detaining authority is found to have

been alive to all the facts and circumstances of the case and

consequently has after deriving subjective satisfaction ordered the

preventive detention of the petitioner. The grounds of challenge

urged in the petition in this view of the matter and what is noticed

hereinabove pale into insignificance. Here a reference to the

judgment of the Apex court passed in case titled as Haradhan Saha

v. State of W. B. reported in (1975) 3 SCC 198 would be

advantageous wherein at para 32 and 33 following has been laid

"32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.

33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu."

In view of the settled principles of law that under preventive laws

even a single act or ground can form the basis for detaining a person.

Reference in this regard to the judgment of the Apex court passed in

case titled as "Gautam Jain vs. Union of India" reported in AIR

2017 SC 230 would be relevant herein.

9. Viewed thus, what has been observed, considered and analysed here-

in-above, the instant petition fails and is accordingly dismissed.

10. The detention record produced by the counsel for the respondents is

returned back in the open court.

(JAVED IQBAL WANI) JUDGE Srinagar 24-10-2024 N Ahmad Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No