Amitpal Singh vs Ut Of J And K Through Principal Secretary ...
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Jammu & Kashmir High Court

Amitpal Singh vs Ut Of J And K Through Principal Secretary ... on 7 October, 2024

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

       IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT JAMMU
                                                    Reserved on: 03.10.2024
                                                  Pronounced on: 07.10.2024

                             HCP 79/2024 CM(2953/2024)

AMITPAL SINGH                                             ...Petitioner(s)/Appellant(s)
Through:       Mr. Asheesh Singh Kotwal, Advocate
                                             Vs
UT OF J AND K THROUGH PRINCIPAL SECRETARY TO                       ...Respondent(s)
GOVT AND OTHERS

Through:       Mr. Amit Gupta, AAG
CORAM:
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                                  JUDGMENT

1. In the instant petition, petitioner herein, has challenged Order No. PITNDPS 28 of 2024 dated 07.05.2024 passed by respondent No. 2, by virtue of which the petitioner has been detained under the Prevention of Illicit Traffic in Narcotics Drugs & Psychotropic Substances Act, 1988 (hereinafter to be referred as "the Act").

FACTUAL MATRIX

2. The detenue has filed this petition through his uncle and has stated that petitioner is a public servant and has till date performed his duty in accordance with the rules and regulations. It is stated that in the dossier the respondent No.3 has mentioned about preventive action under Section 107/110/152 of Cr.P.C and 03 Daily Dairy Reports. The allegations leveled in the Daily Dairy Reports are that the petitioner is dragging the young generation into drug menace, making them addict and spoiling their precious life. It is stated that since the Daily Diary Reports are without any evidence as such respondents failed to culminate these reports into FIRs.

3. The petitioner has challenged the impugned order inter alia on the following grounds:-

A. The petitioner was not informed of his right to make a representation against the order to the detaining authority and to the advisory board. The petitioner was not supplied complete documents whatsoever which was sine qua non as per the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

B. There was no material before Divisional Commissioner on the basis of which he could form an opinion that the detenue would repeatedly and continuously get involved in illicit trafficking. C. The Daily Diary Reports, on the basis of which the petitioner has been detained under the Act by the respondent No.2, have not been provided to the petitioner and the contents of the grounds of detention have also not been explained to him. The detaining authority has formulated the opinion of detention on the basis of 02 Daily Diary Reports which till date have not culminated into FIRs. D. Even in the two FIRs, which have been registered against the petitioner, the quantity of narcotic drugs and psychotropic substances is very small. In FIR No. 181 of 2022 registered at Police Station, Poonch, the quantity of the contraband was only 3.12gm of heroine like substance and in FIR No. 0259 of 2023 registered at Police Station, Gandhi Nagar, Jammu, the quantity of the contraband was 3 to 4 grams of heroine like substance.

E. The Jammu and Kashmir Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988 has been repealed by the introduction of Jammu and Kashmir Reorganization Act, 2019. The impugned detention order has been passed under the Act (supra), as in the communication dated 07.05.2024 addressed by respondent No. 02, to the petitioner a specific mention of SRO 247 dated 27.07.1988 has been made, in terms of the SRO, the Government of Jammu and Kashmir, specially empowered Divisional Commissioner, Jammu/Srinagar to exercise the powers conferred under sub-section (1) of Section 3 of Jammu and Kashmir Prevention of Illicit Traffic in Narcotics, Drugs and Psychotropic Substances Act, 1988.

4. Per contra, the respondents in their counter affidavit have stated that the petitioner was involved in the PITNDPS activities and police has registered a case against him. It is stated that the dossier in respect of petitioner/detenue dated 04.05.2024 was submitted to the respondent and after carefully examining the dossier and the relevant records attached with it, it was found imperative to detain him under the relevant provisions of PITNDPS Act, as after having been tried under NDPS Act for repeated and continuous offences, the petitioner, after getting bail, got again involved in the illicit trafficking of narcotic drugs and was posing serious threat to public order as well as to the health and welfare of the people. It is further stated that the ordinary law has failed to deter as is evident from the conduct of the detenu transpiring from the dossier submitted by SSP Poonch.

5. It is stated that at the time of execution of detention order, the executing officer has provided the relevant documents along with detention order, grounds of detention (total 64 leaves) and had explained the detenue/petitioner in the language i.e., Urdu, which he understands, informing him about his right to make representation before the Government (Home Department) as well as before the detaining authority against the detention order. Respondents have also placed on record the execution report, confirmation of the detention order by Home department vide order dated- 05.06.2024, after seeking opinion of the Advisory Board dated 29.05.2024.

6. Heard learned counsel for the parties.

7. Learned counsel for the petitioner has vehemently argued that Respondent no.1, has no authority to confirm the detention order passed by respondent no.2, in terms of the PITNDPS Act moreover UT of J&K has not appointed any administrator for passing detention orders under PITNDPS Act.

8. In response to the submission made by the learned counsel for the petitioner, Mr. Amit Gupta, learned AAG, has placed reliance upon office order No. 27 of 2020 dated 27.03.2020, whereby in pursuance of Rule 22 of Jammu and Kashmir Government Business Rules and in terms of

approval of Lieutenant Governor, J&K, it has been ordered that the matter related to approval, reference to Advisory Board, confirmation, temporary release, shifting, and revocation of detention made under Prevention of Illicit Traffic and Narcotic Drugs and Psychotropic Substances Act, 1988 and Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 are directed to be disposed of by Administrative Secretary, Home department. The order dated 27.03.2020, is taken on record. This ground raised by the petitioner pales into insignificance and is not sustainable in light of the order dated 27-03-2020.

9. Learned counsel for the petitioner has referred to and relied upon the judgments titled "Abdul Qayoom Ganai vs. UT of J&K; Krishan Lal alias Lundi vs. UT of J&K; Saeed Zakir Hussain Malik vs State of Maharashtra reported as 2012 (8) SCC 233; Anant Sakharam Raut vs State of Maharashtra; Kewal Krishan vs. Financial Commissioner ACS Home Department & Others; Salman Sajad vs. UT of J&K; Rekha vs. State of Tamil Nadu; Rajinder Arora vs Union of India and Others reported as 2006 (4) SCC 796; Banka Sneha Sheela vs State of Telangana reported as AIR 2021 SC 365."

10. The Division Bench of this Court in case titled "Gourav Khajuria vs UT of J&K and Others." of which the learned counsel for the respondents also made reference to, during the course of arguments, has in paragraph No. 15 held as under:-

"15. In this case, it cannot be said that there was no basis for forming a subjective opinion that the appellant if not detained would not pose a threat to the wellbeing of society. There is one fact that distinguishes detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 from other detention laws. For detention under this Act, the sense of anxiety and seriousness on the part of the State is far greater than what is under other preventive detention statutes. All preventive detention statutes cannot be placed on the same pedestal when it comes to ascertain "subjective satisfaction" of the detaining authority. While far greater material and evidence may be required to form a subjective satisfaction under other detention laws, the requirement and degree of evidence in material required to form a subjective satisfaction under this Act may be far lesser depending upon the circumstances. In other words, no rule of thumb can ever be laid down as to how much material would be sufficient to form subjective satisfaction for detention under this Act. From the examination

of facts of this case, it cannot be said that the material before the police and the detaining authority were inadequate to form a subjective satisfaction with regard to the detention of the appellant herein. Also, the Court cannot lay down as to what constitutes substantive satisfaction in order to displace what is arrived at by the detaining authority. However, by caution this Court would like to say that the same does not mean that this Court cannot examine and evaluate the material on the basis of which the detaining authority had formed its subjective satisfaction. The order of detention does not require any interference of this Court. This Court is of the opinion that the material placed before the detaining authority was not so feeble and desolate that a reasonable man could not form the subjective satisfaction under the special Act to detain the detenue."

11. Learned counsel for the respondents in support of his arguments has also referred to and relied upon the case titled "Anil Singh vs. UT of J&K and Others.

12. Considered the submissions made and perused the material made available.

13. It transpires from the perusal of the record that the grounds taken by the petitioner against his detention order are of no help to him as the respondents have sufficiently explained that the material on the basis of which the detention was ordered has been supplied to him; he has been made aware of his right of making a representation to the Government after having read over and explained the contents of the detention in the language that he understood. The only ground that the learned counsel for the petitioner mainly stressed upon was the competence of the Divisional Commissioner to order his detention under the provisions of the repealed Jammu and Kashmir Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act, 1988, which too, has lost significance in view of the provisions of the J&K Reorganization (Removal of Difficulties Orders) 2019.

14. In the grounds of detention, it is stated that, as per the dossier of Senior Superintendent of Police, Poonch, the petitioner is a notorious criminal/drug peddler/habitual smuggler engaged in the sale and purchase of illicit Traffic in narcotic drugs and psychotropic substances, which poses a serious threat to the lives of young generation. It is also stated that petitioner is continuously active in drug consumption; and drug trafficking,

luring young generation in menace of drug addiction. The criminal act of the petitioner is spoiling the future of youth of the area by providing/supplying the contraband substance to them and posing a serious threat, not only to the lives of young generation, but also to the economy and security of the UT of J&K. There are two FIRs registered against the petitioner, FIR number 181/2022 under section 8/21 NDPS Act of P/S Poonch and FIR no. 259/2023 U/S 8/21/22/25 of NDPS Act of P/S Gandhinagar, Jammu, however petitioner has been granted bail in both the FIRs. In addition to above one preventive measure U/S 107/110/117 Cr.P.C Dated 02.04.2024, a police station, Poonch along with three number of adverse reports DDRs dated 04.04.2024, 19.04.2024, 24.04.2024 have also been registered against the petitioner. The respondent No. 02, on the basis of continuous and repeated involvement in criminal as well as narcotic substance cases, has recommended detention of the petitioner under the provisions of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act 1988, read with SRO 247 dated 27.07.1988.

15. Perusal of the record indicates that respondent No. 2 in terms of communication No. 601/RA/detention/182/CC-747 2171 dated 07.05.2024 had informed the petitioner about his detention and made him aware of making representation to the government/ home department as well as to the detaining authority against the detention order. Petitioner has also received total number of 64 leaves which includes copy of detention order 02 leaves, grounds of detention 03 leaves, dossier 04 leaves, notice of detention 01 leave and other relevant record 54 leaves from the executing officer, Kunal Singh Jamwal. The documents have been read over and explained to the petitioner in Urdu language which he understood fully and he was also informed of his right to make representation to the Government against the detention order. The same has been acknowledged by the petitioner in terms of the affidavit presented by the petitioner and duly annexed by the respondent with their counter affidavit.

16. The petitioner failed to make any representation before the detention authority or Home department, despite receiving all the relevant documents on the basis of which he could have made an effective

representation as such the grounds raised by the petitioner for not receiving the relevant documents is of no merit.

17. The next contention raised by the petitioner is about the competency of Divisional Commissioner after repealing of Jammu and Kashmir Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances Act 1988 and a specific mention of SRO 247 dated 27.07.1988, in the detention order after introduction of Reorganization Act of 2019. The learned Counsel for the petitioner has argued that the Divisional Commissioner had been designated as detaining authority in terms of J&K Prevention of Illicit Traffic in Narcotics, Drugs and Psychotropic substances Act, 1988, and with the Reorganization of erstwhile State into two Union Territories, the legal framework has also changed, as the Act applicable to the state of JK has been repealed and the Central Act has been applied directly to the Union Territory of J&K. He has stated that any notification specifying Divisional Commissioner as designated authority under the repealed Act also stands repealed, from the appointed date, 31.10.2019, and the Divisional Commissioner ceases to be the detaining authority or competent to order detention under the Central Act. Though with the enactment of J&K Reorganization Act, 2019, PITNDPS Act whereunder Divisional Commissioner had been designated as detaining authority in terms of SRO 247 of 1988 dated 27.07.1988 was admittedly repealed, however, the Union Government issued an order called the J&K Reorganization (removal of difficulties orders) 2019. Clause 14 of the said order reads as under-

"Anything done or any action taken, including any appointment or delegation made, notification, instruction, or direction issued, form, by-law or scheme framed, certificate, obtained, permit or license granted or registration, effected or agreement executed under any law shall be deemed to have been done or taken under the corresponding provisions of the central laws now extended and applicable to the union territory of Jammu and Kashmir and the union territory of Ladakh, and shall continue to be enforce accordingly, unless and until

superseded by anything done or any action taken under central laws now extended."

18. From the above, it becomes clear that with the removal of difficulties orders, any notification issued earlier which also includes the notification whereby Divisional Commissioner was notified as detaining authority under Jammu & Kashmir PITNDPS Act, is also saved and deemed to have been done or taken under the corresponding provisions of the central law now extended and made applicable to UT of J&K. Therefore, the contention raised by the learned counsel for the petitioner has no relevance in the eyes of law.

19. So far as the contention of the petitioner with respect to the validity of SRO 247 dated 27.07.1988, after repealing of the Jammu and Kashmir, PITNDPS Act and introduction of Reorganization act of 2019 is concerned, petitioner has relied upon Section 2(a) and (g) off the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. Section 2(a) and (g) read as under-

"2. (a) "appropriate Government " means, as respects detention order made by the Central Government or by an officer of the Central Government , or a person detained under such order, the Central Government, and as respects a detention order made by State Government or by an officer of the State Government , or a person detained under such order, the State Government;

(g) "State Government" in relation to a Union Territory, means the administrator thereof;

20. The preventive detention has been consistently held by the Apex Court as not being punitive but curative. The Apex Court in case titled In "Naresh Kumar Goyal v. Union of India", (2005) 8 SCC 276, has taken a similar view. It would be profitable to reproduce paragraph No. 5 of the said judgment as under:-

05. "It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-

social and subversive elements from imperilling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive

detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so."

21. The court is convinced that the detention order is well-reasoned and does not call for any interference whatsoever.

22. In view of above, there is no perversity in the impugned detention order passed by the respondents. The petition is dismissed being devoid of any merit.

(MOKSHA KHAJURIA KAZMI) JUDGE

JAMMU 07.10.2024 ********** Whether the judgment is speaking Yes

Whether the judgment is reportable Yes/No

Vijay Kumar 2024.10.08 14:35

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