Rohit Dutta vs Ut Of J&K And Others
2024 Latest Caselaw 2117 j&K

Jammu & Kashmir High Court

Rohit Dutta 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. 58/2024

                                             Pronounced on:     14.10.2024


Rohit Dutta                                      .... Petitioner/Appellant(s)

                        Through:-   Mr. Prince Khanna, 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

1. The petitioner has challenged the legality, propriety and correctness

of impugned detention order No. PITNDPS 61 of 2023 dated

20.11.2023, passed by the Divisional Commissioner, Jammu 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. The order of detention has been challenged by the detenue

through his wife-Mamta Sharma.

2. The impugned order of detention has been challenged by the

detenue on the ground that it suffers from total non-application of mind,

as the grounds of detention are verbatim of the dossier submitted by the

Senior Superintendent of Police, Jammu. The material on which the

grounds of detention have been framed has not been provided to the

detenue. Moreover, the detenue's case was never referred to the

Advisory Board, and further the detention order does not specify the

period of detention.

3. The respondent No. 3 has prepared the dossier on the basis of FIR

Nos. 130/2020, 67/2021 and 43/2023, however, the detenue has been

granted bail in all these FIRs and the detaining authority has not shown

any awareness to this fact, rendering the detention order invalid and

unsustainable.

4. It is submitted that the dossier was submitted SSP, Jammu, on

04.11.2023 but the detention order was passed on 20.11.2023. The

delay in execution of the order has rendered the same unsustainable.

5. Learned counsel for the detenue submits that the detention order is

also not sustainable as it indicates that the detention is for a reason that

it poses a serious threat to the health and welfare of the people and with

a view to prevent him from committing any act within the meaning of

illicit traffic. However, none of the FIRs contain allegations that the

detenue was involved in drug sales or activities that would pose a

serious threat to the health and welfare of the youth of the Union

Territory of J&K. The detaining authority is not sure of the reason for

which the detenue is detained, as such, the detention order is bad.

6. Mr. Amit Gupta, learned AAG, has filed the counter affidavit as

well as produced the record. The respondents submit that the detenue

has been engaged in repeated illicit trafficking of Narcotic Drugs and

Psychotropic Substances which pose a serious threat to the health and

welfare of the people and, thus, to prevent him from committing any of

these acts, the detenue was taken into preventive detention to prevent

him from acting in any manner prejudicial to the maintenance of public

order.

7. The respondents submit that the detenue has been detained on the

dossier supplied by the SSP, Jammu, 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.

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

record.

9. 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.

10. 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."

11. 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............."

12. 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..."

13. Learned counsel for the detenue has argued that the detenue has not

been informed about his right to make a representation against the order

of detention before the Detaining Authority. The record reveals that the

Divisional Commissioner had given a notice of detention to the detenue

vide order dated 20.11.2023, whereunder the detenue has been informed

of his right to make a representation before the Government against the

said order but the detenue was not informed about his right to make a

representation to the Detaining Authority, which has passed the order of

detention and this has resulted in infraction of valuable rights available

to the detenue. It was next argued that there is delay in executing the

detention order, this delay is only small which has not defeated the

purpose of detention.

14. 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 order reveals that the

detenue was provided all the material (89 leaves) from where it is

apparent 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.

15. The detaining authority has observed that the detenue is

continuously engaged 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.

16. It was next argued by the learned counsel for the detenue that the

detaining authority has detained the detenue only on the basis of three

FIRs. These three 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.

17. It was next submitted that the detenue has been detained only on the

basis of three FIRs for which he has been granted bail and the detaining

authority has not shown any awareness to this fact. The detaining

authority, thus, arrived at its subjective satisfaction with regard to its

apprehension of detenue, indulging in illicit trafficking in narcotic drugs

and psychotropic substances. This satisfaction for detention is not subject

to judicial review.

18. In view of the aforesaid, I do not find any ground to interfere in the

impugned order of detention, thus, there is no merit in this petition and

the same is, accordingly, dismissed.

19. Let the detention record be returned to the learned counsel for the

respondents by the Registry forthwith.

(SINDHU SHARMA) JUDGE

Srinagar:

14.10.2024 Vishal