Jammu & Kashmir High Court

Sudesh Mehta 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. 88/2023

                                                 Reserved on: 27.08.2024
                                               Pronounced on: 14.10.2024

Sudesh Mehta                                      .... Petitioner/Appellant(s)

                        Through:-     Mr. Rohit Sharma, 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 41 of 2023 dated 22.09.2023,

passed by the Divisional Commissioner, Jammu under Section 3 of the

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances

Act, 1998 read with SRO 247 dated 27.07.1988, has been assailed by the

detenue (petitioner herein).

02. The Divisional Commissioner, Jammu, has detained Sudesh

Mehta, S/o Parkash Chand, R/o Chapper Morh, Tehsil Hiranagar,

District Kathua, under Section 3 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, Kathua, the

detenue was involved in two FIRs, i.e., FIR No. 22/2017 registered u/s 8/20

NDPS Act at Police Station, Hiranagar, and FIR No. 42/2023 registered u/s

8/20 of NDPS Act registered at Police Station, Hiranagar. 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) a bare perusal of the impugned order and the grounds of

detention reveals that no fresh incident regarding the detenue's

involvement in any unlawful activities has been reported in any police

station but despite this, respondent No. 2 issued the impugned order based

on an incomplete report submitted by respondent No. 3, leading to the

detenue's detention. Respondent No. 3 failed to report that the detenue has

not been involved in any unlawful activities since May 2023, which shows

that the order was issued on incomplete information, thus, deserving to be

quashed; (b) though the grounds of detention mention that the detenue was

booked under the NDPS Act in two FIRs, i.e., FIR No. 22/2017 and FIR

No. 42/2023, but it is not-mentioned in the grounds that the detenue was

admitted to bail in both these FIRs, therefore, the detention order cannot

justify his detention; (c) the detenue has not been provided with copies of

the FIRs, charge sheets, or other relevant records that were relied upon by

the Detaining Authority. The detention order and grounds of detention

were served with a dossier comprising only 11 pages, and the detenue has

been deprived of making an effective representation, thus, the detention

order deserves to be quashed; (d) the Detaining Authority did not specify

the period for which the detenue is detained. The impugned order shows

that the detenue has been detained indefinitely, without a clear timeline.

This indicates that the order was passed without any application of mind,

making it unsustainable in law; (e) the detention order was based only on

the dossier prepared by the Superintendent of Police, Kathua, without any

application of mind by the Detaining Authority; (f) the detenue's case was

not referred to the Advisory Board, which is a significant procedural

illegality; (g) the detenue has studied up to 8th grade and he does not

understand English, yet the detention order was written in hyper-technical

language. The order was neither read over to the detenue in a language he

understands, nor was a translated script furnished, making the order

beyond his comprehension, thus, violating the constitutional as well as

procedural safeguards provided to him.

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 under

the provisions of the PITNDPS Act, 1988, due to his repeated and

continuous involvement in the illegal trafficking of narcotic drugs. After

carefully examining the dossier supplied by the SSP, Kathua, the

Detaining Authority has arrived at a subjective satisfaction to detain the

detenue based on his continuous involvement in drug trafficking, which

affects the health and welfare of the public.

08. It is submitted that after being granted bail, the detenue was again

involved in the illegal trafficking of narcotic drugs, posing a serious threat

to the maintenance of public order, as well as the health and welfare of the

people. The ordinary law failed to deter the detenue from his activities,

therefore, his detention was necessary.

09. It is further submitted by the respondents that 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.

10. Heard learned counsel for the parties at length and also perused the record.

11. The Divisional Commissioner, Jammu, ordered the detention of the

detenue after relying on the dossier submitted by the SSP, Kathua, on the

grounds of continuous and repeated involvement of detenue in criminal

activities as well as narcotic substance cases, which have remained

unchecked. There was every likelihood that he would expand his illegal

trade to other areas, thereby spoiling the youth of the region and creating

law and order problems. The Detaining Authority also recorded its

satisfaction that the ordinary law of land has failed to deter the detenue

from engaging in illegal trafficking, therefore, it was imperative to detain

him under the PITNDPS Act, 1988.

12. 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.

13. 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.

14. 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. 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."

15. 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............."

16. 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..."

17. The Detaining Authority, after arriving at a satisfaction, has come to

the conclusion that the detention of the detenue is necessary. All the

material relied upon by the Detaining Authority was provided to the

detenue in the language he understands and the detenue also signed the

execution report in English, which indicates that he had sufficient

knowledge of the English language. Despite having the opportunity, the

detenue did not move any representation to the Detaining Authority. The

Advisory Board, after considering all the material on record, concluded

that the detention of the detenue was warranted under the facts and

circumstances of the case.

18. The detention order does not suffer from any legal infirmity and

grounds of detention are free from any ambiguity. The detenue was duly