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Judgment
Moksha Khajuria Kazmi, J
Bilal Ahmad Ganaie son of Abdul Gaffar Ganaie resident of Trikanjan, Boniyar (Baramulla) (for short “detenu”) has been, vide order No. DIVCOM-“K”/93/2023 dated 4th July, 2023, issued by Divisional Commissioner, Kashmir-respondent No. 2 herein, (“Detaining Authority”) placed under detention in terms of Section (3) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short NDPS Act ), and lodged in Central Jail Kote Bhalwal, Jammu. The said order of detention has been assailed in the instant petition.
The case of the petitioner is that the Detaining Authority has passed the detention order on the basis of grounds of dossier, prepared by the Senior Superintendent of Police, Baramulla. It is urged that the detenue has been shown to be involved in two FIRs bearing No’s. 53/2022 & 19/2023 in which the detenue has been enlarged on bail and was facing trial before the competent court of jurisdiction. The said bail orders have not been challenged by the Detaining Authority nor is there any mention of the said bail orders either in the grounds of detention or in the detention order which clearly reflects that the Detaining Authority was not updated with respect to this vital fact.
It has also been averred in the petition that the Detaining Authority ought to have recorded in the grounds of detention that the substantive criminal law could not suffice and prevented the detenue from indulging in the activities alleged against him, so as to draw a satisfaction that preventive detention is required to be pressed into service. As such, no compelling or cogent reasons have been recorded by the Detaining Authority with respect to the subjective satisfaction to order preventive detention of the detenue under the provisions of NDPS Act. The Detaining Authority vide communication dated 07.07.2023, has informed the detenue regarding his right to file representation against his detention, but was not informed within how much time such representation has to be filed. It is further stated that no material has been furnished to the detenue so as to enable him to make an effective representation. The Detaining Authority has not applied its mind while passing the detention order inasmuch as, the Detaining Authority has prepared the grounds of detention on the basis of dossier and the other connected documents mentioned in the order of detention which were never furnished to the detenue.
Per contra, learned counsel for respondents in his counter affidavit has stated that detention order has been passed in exercise of powers vested with Detaining Authority in terms of section 3 of NDPS Act, with a view to prevent the detenue from indulging in illegal trade of illicit traffic in narcotic drugs and psychotropic substance. It is also stated that the bail granted to the detenue under the NDPS Act will not affect the legality of the preventive detention order. The detention order is based on its own set of facts and reasons and even bail granted in criminal offence cannot debar the Detaining Authority to order preventive detention. The detenue was not only informed about his right to file a representation but was also furnished the copies of order of detention and grounds of detention which were explained to him in Urdu and Kashmiri languages. The detenue is involved in case FIR No. 53/2022 under Section 8/21 NDPS Act of registered in Police Station, Boniyar and despite legal intervention the detenue did not mend his ways and was again apprehended in case FIR No. 19/2023 under Section 8/21-29 NDPS Act of P/S Boniyar with 13 grams of brown sugar and 60 grams of Charas-like substance. It is further stated that the seized contraband from his possession proves that the detenue is fully involved in illegal trade and is working with conscious mind, in an organized manner, which is a threat for sustaining moral values of the society, and to the welfare of young generation in the Union Territory of Jammu and Kashmir. It is further stated that the detention order does not suffer from any legal infirmity, inasmuch as, the safeguards provided under the Constitution have been followed while passing the detention order, as such, challenge thrown to the impugned order of detention is not sustainable.
I have heard learned counsel for the parties and considered the matter. I have gone through the detention record made available by Mr. Mohsin. S. Qadri, Sr. AAG.
Mr N. H. Shah, learned sr. counsel for the petitioner, during arguments had made reliance on the judgment delivered by the Division Bench of the Allahabad High Court (Lucknow Bench) in case titled Jitendra v. Dist. Magistrate Barabanki and others, reported as 2004 CrlJ 2967 to indicate that the detaining authority is required to inform the detenue as to within how much time he can make representation against his detention.
The record reveals that the detenue was apprehended in case FIR Nos. 53/2022 & 19/2022 of P/S Boniyar and 13 grams of brown sugar and 60 grams of Charas-like substance were recovered from his possession. The grounds of detention do not reflect that the detenue stands already bailed out in these FIR’s by the competent court of jurisdiction. This shows that the Detaining Authority was not unaware of such a vital aspect of the matter.
It appears that there is a total non-application of mind on the part of Detaining Authority, as it was not aware about the bail so granted to the detenue by the competent court of jurisdiction in the cases which form basis for his preventive detention.
The non-application of mind explicit on the face of the record renders the order of detention illegal. This view is fortified by the judgment rendered by the Apex Court in case Anant Sakharam Raut Vs. State of Maharashtra and others reported as AIR 1987 SC 137 and also by the judgment rendered recently in Ameena Begum v. State of Telegana bearing Special Leave to Appeal (Crl) No. 8510 of 2023.
The record produced by the learned counsel for the respondents further reveals that the detenue has been furnished only 12 leaves, i.e, the detention order (01 leaf), notice of detention (01 leaf), grounds of detention (02), Dossier of detention (Nil) copies of FIR, statement of witnesses and other related documents (08 leaves).
From perusal of “Execution Report” which is part of the record, it is quite discernible that the detenue has not been provided the copy of the Dossier which forms basis of his detention. The grounds of detention, give reference to various alleged activities of the detenue that appear to have weighed with Detaining Authority, while making detention order. The detention record also does not indicate that copy of the dossier was ever supplied to the detenue, on the basis whereof impugned detention order has been passed.
The aforesaid material, thus, assumes importance in the facts and circumstances of the case. It is only after every document, more importantly the copy of the police dossier, is made available to the detenue, that he can make an effort to convince the Detaining Authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. If the detenue is not supplied the material, on which the detention order is based, he will not be in a position to make an effective representation against his detention order. The failure on the part of the Detaining Authority to supply the material, relied at the time of making the detention order to the detenue, renders the detention order illegal and unsustainable. In this regard support can be drawn from the law laid down in the cases of Thahira Haris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr.L. J. 4567; Dhannajoy Dass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam Mohd Bham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed Aasiya Indrabi v. State of J&K & ors, 2009 (I) S.L.J 219.
The Supreme Court in Abdul Latief Abdul Wahab Sheikh v. B. K. Jha, 1987 (2) SCC 22 has held that the procedural requirements are the only safeguards available to the detenue, which are to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of the detaining authority. In the present case, the procedural requirements, as discussed above, have not been followed and complied with by the respondents in letter and spirit. Resultantly, the impugned detention order cannot survive and deserves to be quashed.
Having regard to the discussion made hereinabove, the legal and factual circumstances of the case, the impugned order is held to be not sustainable in law. Resultantly, the petition is allowed and the order of detention bearing No. DIVCOM-“K”/93/2023 dated 4th July, 2023, issued by the Divisional Commissioner, Kashmir, is quashed. The detenue, Bilal Ahmad Ganaie S/o Abdul Gaffar Ganaie R/o Trikanjan Boniyar, District Baramulla, is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case(s).
Detention record be returned to counsel for respondents.
Disposed of.