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Judgment
Rajnesh Oswal, J
Aggrieved of the order of detention bearing No. PITNDPS 09 of 2023 dated 19.04.2023 issued by the respondent No. 2 (hereinafter to be referred as “the detaining authority”) under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short, “the PITNDPS Act), the petitioner has filed the instant petition for quashing of the same on the following grounds:
(1) That the petitioner is an illiterate person and not well conversant with the language of the detention order, was not provided the translated version of the grounds of detention, thereby enabling the petitioner to make an effective representation against the order of detention, as such, order of detention is in violation of Article 22(5) of the Constitution of India.
(2) That impugned order of detention suffers from the vice of non-application of mind.
(3) That there is no live and proximate link between the prejudicial activities alleged to have been committed by the detenue and the purpose of passing of the detention order, as old and stale incidents have been relied upon by the respondent No. 2 while issuing the order of detention.
The respondents have filed the counter-affidavit stating therein that the petitioner was continuously and repeatedly found to be involved in illicit trafficking of drugs from 2017 till date, which is evident from three FIRs registered against him under the NDPS Act. Charge-sheet in one of the cases has been filed, whereas the investigation is continuing in other two cases. It is also stated that the petitioner is continuously involved in criminal/NDPS cases from the year 2011 to 2023 and has not mended his ways despite having bailed out by the courts. The detention order along with grounds of detention and the relevant record (128 leaves) were provided to the petitioner by the Executing Officer and the Executing Officer had also explained the detenue the grounds of detention in the language he understands i.e Hindi/Dogri. It has been further stated that the petitioner was also informed about his right to make a representation before Government against the order of detention. It is also averred that the detention order passed by the respondent No. 2 has been confirmed by the respondent No. 1 after obtaining an opinion of the Advisory Board vide order dated 15.06.2023.
Mr. Navyug Sethi, learned counsel for the petitioner has submitted that all the documents relied upon by the detaining authority were not provided to the petitioner, which incapacitated the petitioner to make an effective representation against his order of detention. He further argued that respondents have not followed the mandatory provisions of law while detaining the petitioner. Mr. Sethi has further submitted that as the petitioner was granted bail, so the respondents instead of detaining the petitioner ought to have challenged the same. In support of his contentions, learned counsel for the petitioner has relied upon the judgments of this Court in WP(Crl) No. 87/2022, titled, Anoop Sharma through Bimla Devi vs. UT of J&K and ors. decided on 04.08.2023, WP(Crl.) No. 287/2023, titled, Burhaan Mushtaq vs. UT of J&K and ors. decided on 22.03.2024, WP(Crl.) No. 202/2022, titled, Muyeeb Shafi Ganie vs. UT of J&K and Anr., decided on 31.01.2024 and Krishan Lal Alias Lundi vs. UT of J&K JKJ Online 80364.
Per contra, Mr. Amit Gupta, learned counsel for the respondents has vehemently argued that all the documents relied upon by the detaining authority were provided to the petitioner against proper receipt. He further submitted that the petitioner was detained under the PITNDPS Act after taking into consideration his continuous involvement in three FIRs as mentioned in the grounds of detention. In support of his contentions, Mr. Gutpa has relied upon the judgment of the Coordinate Bench of this Court in Priya Devi aka Priya @ Mani vs. UT of J&K and ors, decided on 20.04.2024.
Heard and perused the record.
The detention record reveals that a dossier was submitted by the respondent No. 3 to the respondent No. 2 for detaining the petitioner under PITNDPS Act and in the dossier, reference to the following 11 FIRs has been made:
1) FIR No. 139/2011 under Section 48(E) Excise Act, P/S, Bishnah.
2) FIR No. 126/2013 under Sections 341/224/353/34 RPC, Police Station, Bishnah.
3) FIR No. 01/2013 under Section 48 Excise Act, Police Station, Bishnah.
4) FIR No. 113/2017 under Section 48 Act, P/S, Bishnah.
5) FIR No. 180/2017 under Section 48 Excise Act, Police Station, Bishnah.
6) FIR No. 241/2017 under Section 48 a Excise Act, Police Station, Bishnah.
7) FIR No. 266/2017 under Section 48 Excise Act, Police Station, Bishnah.
8) FIR No. 155/2021 under Section 8/21/22/27 of NDPS Act, Police Station, Bishnah.
9) FIR No. 186/2021 under Section 39/48/48-A/49 Wild Life Protection Act 1972, Police Station, Bishnah.
FIR No. 21/2023 under Section 8(a)/21/22 NDPS and Section 4/25 Arms Act, Police Station, Miran Sahib.
FIR No. 54/2023 under Sections 8/21/22/ NDPS Act, Police Station, Bishnah.
The respondent No. 2, however, has relied upon only three FIRs i.e. FIR No. 155/2021 under Sections 8/21/22/27 of NDPS Act, Police Station, Bishnah, FIR No. 21/2023 under Section 8(a)/21/22 NDPS and Section 4/25 Arms Act, Police Station, Miran Sahib and FIR No. 54/2023 under Sections 8/21/22/ NDPS Act, Police Station, Bishnah for the purpose of detaining the petitioner under the PITNDPS Act.
The first contention raised by the learned counsel for the petitioner is that the documents relied upon by the detaining authority for the purpose of detaining the petitioner under the Act were not provided to the petitioner. A perusal of the detention record reveals that copy of notice, order of detention, grounds of detention along with dossier and other material consisting of 128 leaves in total, were provided to the petitioner on 17.05.2023 and in acknowledgment thereof, he has put his thumb impression over the same. Besides, the petitioner was also explained the grounds of detention in Hindi/Dogri language, which he fully understood. The execution report duly prepared by the Executing Officer also bears testimony to the fact that grounds of detention were read over and explained to the petitioner in Hindi/Dogri language. Therefore, this Court does not find any force in the submission made by the learned counsel for the petitioner that the documents relied upon by the detaining authority were not provided to him.
It is also contended by the petitioner that the order of detention suffer from the vice of non-application of mind. A perusal of the record reveals that the respondent No. 3 vide its dossier accompanied with communication dated 11.04.2023, requested the respondent No. 2 to detain the petitioner under Section 3 of the PITNDPS Act. A perusal of the dossier further reveals that the respondent No. 3 had mentioned about 11 FIRs, as mentioned above, registered against petitioner for violation of various provisions of law but the respondent No. 3 after considering the dossier and after proper application of mind relied upon only three FIRs i.e. FIR No. 155/2021 under Sections 8/21/22/27 of NDPS Act, Police Station, Bishnah, FIR No. 21/2023 under Section 8(a)/21/22 NDPS and Section 4/25 Arms Act, Police Station, Miran Sahib and FIR No. 54/2023 under Sections 8/21/22/ NDPS Act, Police Station, Bishnah. The reliance placed upon three FIRs only by the respondent No.2, notwithstanding the reference of 11 FIRs made in dossier, itself demonstrates that the respondent No.2 has applied its mind independently and has not simply endorsed the dossier while issuing the order of detention.
The other contention of the learned counsel for the petitioner is that the respondents ought to have challenged the order granting bail to the petitioner instead of detaining the petitioner under the PITNDPS Act. In Rekha v. State of T.N., (2011) 5 SCC 244, the Hon’ble Apex Court has held that whenever an order under a preventive detention law is challenged, one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.
The allegations levelled against the petitioner in all the three FIRs relied upon by the respondents are in respect of recovery of intermediate quantity of the contraband and because of recovery of intermediate quantity of contraband, the petitioner was enlarged on bail in all the three FIRs. The petitioner figures as accused in one FIR in the year 2021 and two FIRs in quick succession in the year 2023. Had the ordinary law been sufficient to deal with such situation, the position would have been different. The mere fact that the petitioner has been found to be involved in three FIRs itself makes it evident that the ordinary law has miserably failed to put the brakes to the illegal activities of the petitioner. Otherwise also, the illegal activities were not committed by the petitioner in ordinary course of his business and in full public view which would have been taken care of by the ordinary law of the land but clandestinely. It was because of inapplicability of Section 37 of the NDPS Act, the petitioner has been able to secure bail. Even the challenge thrown to the orders grating bail would have been futile. A Coordinate Bench of this court in HCP No. 85/2023, titled Priya Devi aka Priya @ Mani, vs. UT of J&K and ors. decided on 20.04.2024 in paragraph 16 has held as under:
“It is writ large from the record that the petitioner has been indulging in illicit traffic of illicit drugs very cleverly. She has been trafficking illicit drugs in small quantity so that she could easily obtain bail from the Court without being caught by the rigors of Section 37 of the NDPS Act. In such situation, challenge to the bail granted by the Court to the petitioner in respect of either a small quantity or an intermediate quantity of illicit drug would have been a futile exercise.”
The petitioner was released on temporary bail for a period of 13 days w.e.f.15.09.2023 and he was directed to surrender before the In-charge of the concerned Jail. After his release, the petitioner had absconded and the Jail Authorities intimated the court that the petitioner did not surrender, as such the non-bailable warrants were issued against the petitioner vide order dated 04.10.2023. The non-bailable warrants remained un-executed till 16.01.2024, as the petitioner absconded. He could be detained only on 16.01.2024. The petitioner has shown scant respect to the order passed by the court and as such he deserves no sympathy, despite the fact that he was granted interim bail due to demise of his son.
Viewed thus, there is no merit in the present writ petition. The same is, accordingly, dismissed.
The detention record, as produced, be returned to Mr. Amit Gupta.