Jammu & Kashmir High Court
Abdul Habib vs Ut Of J&K And Others on 14 October, 2024
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 64/2024
Reserved on: 26.09.2024
Pronounced on: 14.10.2024
Abdul Habib .... Petitioner/Appellant(s)
Through:- Mr. Idrees Saleem Dar, Advocate
V/s
UT of J&K and others .....Respondent(s)
Through:- Mr. Amit Gupta, AAG
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The petitioner has challenged the legality, propriety and correctness of
impugned detention order No. PITNDPS 23 of 2024 dated 19.03.2024,
passed by the Divisional Commissioner, Jammu under Section 3(1) of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Act, 1998 read with SRO 247 dated 27.07.1988. The order of detention has
been challenged by the detenue through his brother-Niku.
02. The Divisional Commissioner, Jammu, has detained Abdul Habib @
Bheem S/o Maon Din R/o Ladana, Tehsil Ramnagar, District Udhampur,
A/P Badheri, Nanak Chak, Tehsil and District Samba, under Section 3(1) of
the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 read with SRO 247 dated 27.07.1988 to prevent him
from committing any act within the meaning of illicit trafficking.
03. The detention of the detenue has been ordered on the ground of his
repeated and continuous involvement in criminal as well sale and purchase of
Narcotic Drugs and Psychotropic Substance which poses a serious threat to
the health and welfare of the people.
04. As per the dossier of the Sr. Superintendent of Police, Samba, the
detenue was involved in two FIRs, i.e., FIR No. 123/2022 registered u/s
8/21/22 NDPS Act at Police Station, Samba, and FIR No. 17/2024 registered
u/s 8/21/22/25/27(a)/29 of NDPS Act and u/s 3/25 of Arms Act registered at
Police Station, Samba. The Detaining Authority, after considering the dossier
of activities submitted by the Police, has arrived at its subjective satisfaction
to prevent the detenue from further committing any offences and accordingly
issued the order of detention.
05. The detenue has assailed the impugned order of detention on the
ground that; (a) the Detaining Authority relied on two FIRs (No. 123/2022
and No. 17/2024) while passing the order of detention but bail in both cases
has been granted to the detenue and there were no compelling reasons
recorded for his detention; (b) the detention order was based solely on the
dossier prepared by the Superintendent of Police, Jammu, without any
application of mind by the Detaining Authority; (c) the detention order was
communicated to the detenue within the prescribed time, violating Section 3
of the PITNDPS Act, and the Detaining Authority failed to refer the
detention to the Advisory Board within the mandatory five-week period,
making the detention order unsustainable; (d) the allegations against the
detenue are of a criminal nature and the Detaining Authority has failed to
show how the ordinary law not sufficient to address the issues; (e) the
Detaining Authority did not supply the relevant material (FIRs, witness
statements, FSL report) to the detenue, infringing upon his right to make a
representation; (f) the detenue, having studied only up to the 5th standard,
was provided with the grounds of detention in a highly technical language
that was beyond his comprehension. The Detaining Authority failed to
provide the grounds of detention in the language the detenue understands,
thus, violating the constitutional as well as procedural safeguards provided to
him; (g) the Detaining Authority did not ensure that the grounds of detention
were communicated effectively to the detenue in a language he understood,
violating both constitutional safeguards under Article 22(5) and the
procedural requirements under the PITNDPS Act.
06. Mr. Amit Gupta, learned AAG, has filed the counter affidavit as well
as produced the relevant record.
07. The respondents submit that the detenue has been detained on the
dossier supplied by the SSP, Samba, and the Detaining Authority, after
carefully examining the same, has arrived at a subjective satisfaction to
detain the detenue for his repeated and continuous involvement in drugs
trafficking, which affect the health and welfare of the people. All the
statutory requirements and constitutional guarantees have been fulfilled and
complied with by the Detaining Authority. The impugned order issued is
legal and valid and the learned counsel for the respondents has further
submitted that the grounds urged in this petition by the detenue are
misconceived and untenable being without any merit.
08. Heard learned counsel for the parties at length and also perused the
record.
09. The right of personal liberty is most precious right, guaranteed under
the Constitution. It has been held to be transcendental, inalienable and
available to a person independent of the Constitution. A person is not to be
deprived of his personal liberty, except in accordance with procedures
established under law and the procedure as laid down in "Maneka Gandhi
vs. Union of India", 1978 AIR SC 597, is to be just and fair. The personal
liberty may be curtailed, where a person faces a criminal charge or is
convicted of an offence and sentenced to imprisonment.
10. Article 22(5) of the Constitution of India, provided for detention of a
person without a formal charge and trial and without such person held guilty
of an offence and sentenced to imprisonment by a competent court. Its aim
and object are to save society from activities that are likely to deprive a large
number of people of their right to life and personal liberty.
11. It is well settled that the purpose of the preventive detention by
detaining of a person is not to punish him for something he has done but to
prevent him from doing a particular act which is prejudicial either to the
security of the State or to the maintenance of the public order.
12. In "Haradhan Saha V. State of West Bengal", (1975) 3 SCC
198, Hon'ble the Supreme Court has held that there is no parallel between
prosecution in a Court of law and a detention order under the Public Safety
Act. One is a punitive action and the other is a preventive act. In one, case a
person is punished to prove his guilt and the standard is proof beyond
reasonable doubt whereas in preventive detention a man is prevented from
doing something which it is necessary for reasons mentioned in the Act. The
relevant part of the judgment is reproduced as under:-
"The essential concept of preventive detention is that the detention of
a person is not to punish him for something he has done but to
prevent him from doing it. The, basis of detention is the satisfaction of
the executive of a reasonable probability of the likelihood of the
detenu acting in a manner similar to his past acts and preventing him
by detention from doing the same. A criminal conviction on the other
hand is for an act already done which can only be possible by a trial
and legal evidence. There is no parallel between prosecution in a Court
of law and a detention order under the Act. One is a punitive action
and the other is a preventive act. In one, case a person is punished to
prove his guilt and the standard is proof beyond reasonable doubt
whereas in preventive detention a man is prevented from doing
something which it is necessary for reasons mentioned in section 3 of
the Act to prevent."
13. In "Khudiram Das V. State of West Bengal and others", (1975) 2
SCR 832, It was held that:-
"...........The power of detention is clearly a preventive measure. It does
not partake in any manner of the nature of punishment. It is taken by
way of precaution to prevent mischief to the community. Since every
preventive measure is based on the principle that a person should be
prevented from doing something which, if left free and unfettered, it is
reasonably probable he would do, it must necessarily proceed in all
cases, to some extent, on suspicion or anticipation as distinct from
proof............."
14. Similarly, in "Secretary to Government, Public (Law and order)
and another vs. Nabila and another", (2015) 12 SCC 127, it has been held
that one act may not be sufficient to form the requisite satisfaction for
detaining him. Relevant portion of the judgment is as under:
"Indisputably, the object of law of preventive detention is not punitive,
but only preventive. In case of preventive detention no offence is to be
proved nor is any charge formulated. The justification of such
detention is suspicion and reasonability and there is no criminal
conviction which can only be warranted by legal evidence..."
15. Perusal of the record also reveals that the detenue has been provided
all the material relied upon by the Detaining Authority while passing the
order of detention. The receipt of detention reveals that the detenue was
provided all the material (28 leaves) which reveals that the detenue was
provided with all the material and the same was explained to him in English,
Hindi, Urdu and Dogri languages, which he understood. The detenue has
signed the receipt of detention in English which reveals that the detenue has
sufficient knowledge of the same.
16. The Detaining Authority has observed that the detenue is continuously
engaging in illicit trafficking in narcotic drugs and psychotropic substances
which poses a serious threat to the health and welfare of the people and the
young generation is affected by it. The Detaining Authority, after recording
its subjective satisfaction, has passed the impugned order of detention. The
Detaining Authority was aware that detenue was engaged in illicit trafficking
of drugs and these acts were against the general public, therefore, making it
necessary to detain the detenue.
17. It was next argued by the learned counsel for the detenue that the
Detaining Authority has detained the detenue only on the basis of two
FIRs. These two incidents are sufficient for the Detaining Authority to
initiate proceedings of preventive detention if the Detaining Authority
arrives at a subjective satisfaction that the detenue was indulged in
narcotics drugs and psychotropic substances. The detention is preventive
and precautionary in nature and is not punitive. It is to prevent the
individual from carrying out acts which are in any manner prejudicial to
the health and welfare of the people. The Detaining Authority was
satisfied that there was every apprehension that the detenue would indulge
in illicit trafficking of narcotics drugs and psychotropic substances in case
he is allowed to remain free and the satisfaction for detention is the
prerogative of the Detaining Authority, therefore, the Detaining Authority
has rightly exercised the same. The Detaining Authority has also shown its
awareness to the bail granted to the detenue.
18. The detention order does not suffer from any legal infirmity and
grounds of detention are free from any ambiguity. The detenue was duly
informed what weighed with the Detaining Authority while passing the order
of detention. The Detaining Authority arrived at a subjective satisfaction that
detenue was required to be placed under preventive detention under the
PITDPS Act, 1998.
19. The Detaining Authority thus arrived at its subjective satisfaction
regarding its apprehension that the detenue might repeat and continuously
engage in illicit trafficking of narcotic drugs and psychotropic substances.
This satisfaction for detention is not subject to judicial review. The detenue
was provided all the material relied upon by the Detaining Authority
consisting of 28 leaves. The same has also been explained to him in the
language he understands.
20. In view of the aforesaid, none of the constitutional or statutory
grounds available to the detenue have been violated and there is no merit in
this petition and the same is, accordingly, dismissed.
21. Detention record be returned to the learned counsel for the respondents
by the Registry forthwith.
(Sindhu Sharma)
Judge
Srinagar:
14.10.2024
Michal Sharma/PS
Whether approved for reporting : Yes
