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Judgment
The petitioner has challenged detention order No. DIVCOM-“Kâ€/123/2020 dated 10.03.2020, passed by respondent No. 2, whereby the
petitioner-Mohd. Amin Dar S/o Late Abdul Gani Dar has been detained in terms of Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (hereinafter called the Act). The detention order has been challenged on the ground that the grounds of detention
are vague and non-existent; that the order has been passed on an alleged single activity of the petitioner; that the petitioner was already in custody in
FIR No. 27/2020 registered with Police Station, Magam and had neither applied for bail nor was bail due to him in view of the provisions of NDPS
Act; that no reason has been given which compelled the respondents to issue the order of detention; that the respondent only relied upon police dossier
and the copy of dossier and the material have not been provided to the petitioner while detaining the petitioner. The petitioner only understands Urdu
and Kashmiri language whereas the detention order was in English and the translated version of the detention order has not been provided to the
petitioner thereby depriving him of making effective representation in the matter.
The reply to the petition has been filed wherein the respondents have denied the assertions made in the grounds of the petition. It is submitted that
the order has been passed strictly in accordance with the Act; that the petitioner was found in possession of Narcotic substance and the report of FSL
also confirmed the same. The petitioner is involved in illegal trade of contraband and that the order impugned has been passed by the detaining
authority after applying the mind. It is pleaded that the petition in hand be dismissed.
The record has been produced by the respondents.
The words „preventive detention‟ speak for themselves the meaning. The preventive detention and prosecution have different purposes and the
nature of proceedings is also entirely different. The difference between the preventive detention and prosecution is aptly described in the following
observations of the Apex Court in Haradhan Saha‟s case reported in (1975) 3 SCC 198:
“32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary
power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution
even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made
before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even
acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution.
Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are
different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past
act is merely the material for inference about the future course of probable conduct on the part of the detenu.â€
The petitioner-Mohammad Amin Dar has been detained as the petitioner is stated to be notorious trafficker of contraband substance like Cannabis
and involved in the distribution of the contraband among the youth of the area. The petitioner has been arrested in FIR No. 27/2020 under Sections
8/22 of NDPS Act. The FIR reveals that the petitioner is in illegal trade with conscious mind and poses serious threat to the welfare of the people in
the State in general and district Budgam in particular.
The record also reveals that the grounds of detention have been provided to the petitioner and read over to him in Kashmiri language while
executing the detention order on 13.03.2020. The signatures of the petitioner are also on the receipt of grounds of detention. Two leaves have been
provided to the petitioner as is revealed from the receipt of grounds of detention. It means that only grounds of detention which consist of two leaves
have been supplied to the petitioner and nothing more. The order of detention has been passed on the basis of dossier provided by Superintendent of
Police, district Budgam. Indeed, the copy of FIR, seizure memo and other documents were available with the detaining authority but the same have
not been supplied to the petitioner while executing the warrant of detention. It shows that the petitioner has been deprived of his right to have the
complete material which formed the basis of the detention order. The petitioner is entitled to have all the relevant material so as to make him aware of
the same and be able to represent before the competent authority in case he chooses to do so against his detention order. Merely informing the
petitioner that the petitioner has right to be heard in person by the competent authority does not fulfill the responsibility of the respondents unless the
petitioner has been provided with the relevant material as stated above. The providing of material by the detaining authority is not mere formality and if
the same is not done by the detaining authority the detention order cannot be upheld in law. It is ironical that in numerous cases it has been observed
that detaining authority has failed to fulfill the statutory obligation and responsibility which is cast upon the authority of providing the necessary material
to the detainee. The detention order is liable to be quashed on the above mentioned ground alone.
The petitioner, as mentioned above, is stated to be habitual drugs trafficker. The petitioner has been found to be in possession of some narcotic
substance and that is why the FIR came to be lodged against the petitioner and consequently resulted into passing of detention order against the
petitioner. It is not revealed from the record that except for one FIR alleging that the petitioner is involved under Section 8/22 NDPS Act, there was
any other material with the detaining authority to conclude that the petitioner is habitual drug trafficker. A single act in certain circumstances can be
sufficient to invoke preventive detention. The order of detention cannot be passed on mere assumptions and the detaining authority has to address
itself to the question if the ordinarily law to which the petitioner is subjected to is sufficient to deal with the situation. It is apt to rely upon the
observations of the apex Court in the case of Rekha vs. State of Tamil Nadu (2011) 5 SCC 244 wherein it was observed:
“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. In the present case,
the charge against the detenue was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the
Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was
illegal.â€
The court has no hesitation in holding that there was no material available with the detaining authority to hold that the petitioner was habitual drug
trafficker and therefore the detention order against the petitioner. In the present case the respondent No. 2 has in fact relied upon the single FIR while
passing the detention order. There can be no gainsaying that the petitioner could be taken care of his alleged activity under the provisions of NDPS
Act and detention order on the basis of sole FIR against the petitioner was uncalled for.
The satisfaction of the detaining authority while passing the detention order is subjective one. The court will not ordinarily interfere or assess the
subjective satisfaction of detaining authority but at the same time the judicial authority is not barred from scrutinizing the subjective satisfaction of the
detaining authority in any given case.
In Union of India Vs. Dimple Happy Dhakad (Appeal No. 1064/2019 decided on 18.07.2019) the Hon‟ble Supreme Court has held that the
subjective satisfaction of the detaining authority is not immune from judicial reviewability.
To summarize the discussion, the detention order is bad for the reason that the necessary material was not provided to the petitioner, the single
alleged act of the petitioner was not sufficient to invoke the detention order and that the petitioner has been deprived of his right to representation
before the competent authority in an effective manner as he was deprived of the relevant material which formed basis of detention order.
Looked from any angle, the detention order impugned in the present writ petition is liable to be quashed and is, accordingly, quashed. The petitioner
if not presently required in FIR 27/2020 registered with Police Station, Magam, or any other case be released forthwith.
The petition is, accordingly, disposed of.
The record produced be returned to the concerned.