Mushtaq Ahmad Bhat vs State of J&K

Mohammad Yaqoob Mir, J.—Divisional Commissioner, Kashmir, in exercise of powers conferred under Section 3 of the Jammu and Kashmir

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as ""Act of 1988""), has ordered

detention of Mushtaq Ahmad Bhat S/o Mohammad Sultan Bhat R/O Bazipora Ajas District Bandipora (hereinafter referred to as the detenue),

vide order No.DIVCOM""K""/26/2016 dated 10.03.2016. The order has been confirmed and the detenue detained for a period of six months in

the first instance, as such, lodged in District Jail, Kathua. Before the expiry of six months, the period of detention has been extended for a further

period of six months vide Govt. Order No.Home/PB-V/907/2016 dated 10.09.2016.

The order of detention has been challenged on various grounds, which include:

1) Non application of mind;

2) Non supply of material forming base for the order of detention.

The object and scope of detaining a person under Section 3 of the ""Act of 1988"", is to prevent him from committing any of the acts within the

meaning of ""Illicit Traffic"" as defined in clause (c) of Section 2 of the Act, which reads as under:

(c)""Illicit traffic"" means -

(i) cultivating any coca plant or gathering any portion of coca plant;

(ii) cultivating the opium, poppy or any cannabis plant;

(iii) engaging in the production, manufacture, possession, sale, purchase, transportation, warehousing, concealment, use or consumption, import,

inter-State, export inter-State or transhipment of narcotic drugs of psychotropic substances;

(iv) dealing in narcotic drugs or psychotropic substances otherwise than as provided in sub-clause (i) and (iii);

(v) handling or letting any premises for use for any of the purposes referred to in subclauses (i) to (iv);

(vi) financing any activity by himself or through any other person in furtherance or in support of doing any of the aforesaid acts''

(vii) harbouring persons engaged in any of the activities specified in sub-clauses (i) to (iv); or

(viii) abetting or conspiring in the furtherance or in support of doing any of the aforesaid acts;

except to the extent permitted under the Narcotic Drugs and psychotropic Substances Act, 1985, or any rule or order made, or any condition of

any licence, permit or authorisation issued thereunder.

The detaining authority in the order of detention has also recorded as under:

I am satisfied that with a view to prevent Mushtaq Ahmad Bhat S/o Mohammad Sultan Bhat R/o Bazipora Ajas District Bandipora from

committing any of the acts within the meaning of illicit traffic and maintenance of public order it is necessary to do so.

Mention of the words ""maintenance of public order"" would suggest that the detaining authority himself has not been certain or has not been alive

to the legal position i.e. under Section 3 of the ""Act of 1988"", a person could not be detained for the acts prejudicial to the maintenance of public

order.

It is also clear from the order of detention dated 10.03.2016 that the detaining authority has recorded that the Senior Superintendent of Police

Bandipora, has produced the material record but it is nowhere mentioned that the detaining authority had formulated the grounds of detention with

a view of derive subjective satisfaction for curtailing liberty of the detenue.

In terms of Section 11 of the ""Act of 1988"", maximum period of detention which could be ordered, to which Section 10 does not apply, shall be

one year from the date of detention whereas a person who has been detained under clause (f) of Section 9 read with sub-section (2) of Section 10

of the ""Act of 1988"", maximum period shall be two years. The detaining authority has discretion either to order detention for a period of one year

or less than one year. Once the discretion is exercised and the detenue is detained for a period of six months, then there is no scope for ordering

extension of the detention.

Section 18 of the J&K Public Safety Act which is not applicable to the present case provides for maximum period of detention in the case

where a person has been detained under Section 8 of the J&K Public Safety Act. Earlier language of Section 18 was similar to Section 11 of the

Act of 1988"" but the said provision has been amended where-under it has been mandated that in case of threat to maintenance of public order,

detention can be ordered for a period of three months in the first instance which can be extended up to 12 months. Section 11 of the ""Act of 1988

has not been amended. This also shows that perhaps detaining authority has fixed the period of detention under Section 18 of the J&K Public

Safety act.

Number of cases have been registered against the detenue but it is nowhere stated as to whether at any point of time any application was moved

for cancellation of bail or as to whether detenue was admitted to bail in all such cases.

All the afore-stated circumstances suggest that there has been non-application of mind rendering the order of detention as unsustainable.

The reply, as has been filed by the respondents, reveal that while ordering detention notice has been taken of the cases registered against the

detenue, such as:

a) FIR No.45/2009 U/S 379 RPC, 6 F. Act P/S Sumbal;

b) FIR No.200/2013 U/S 457, 380 RPC P/S Sumbal;

c) FIR No.14/2014 U/S 379 RPC 6 F. Act P/S Aragam;

d) FIR No.190/2015 U/S 8/20, 8/21 NDPS Act P/S Sumbal;

e) FIR No.25/2016 U/S 8/21 NDPS Act P/S Sumbal

In connection with case FIR No.190/2015 200 grams of charas were allegedly recovered whereas in connection with FIR No.25/2016, 28

bottles of Rancof were allegedly recovered from the possession of the detenue. The important position which has emerged is that the whole

material forming base for the order of detention has not been supplied to the detenue, resultantly the detenue has been deprived of making an

effective representation against his detention, which right is guaranteed under Article 22(5) of the Constitution of India, which in turn renders the

order of detention as unsustainable. In this connection it shall be quite advantageous to quote following para from the judgment rendered by the

Hon''ble Apex Court in the case Sophia Gulam Mohd. Bham v. State of Maharashtra (AIR 1999 SC 3051), wherein it has been held:

The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the

grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made

and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material

on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language

The persons who indulge in the activities, which adversely affect the social order, are required to be dealt with sternly but at the same time

adherence to law is imperative.

Keeping in view the aforesaid position coupled with the fact that the order of detention dated 10.03.2016 has been executed on 16.03.2016,

which means on 16th March, 2017, detenue is completing one year of detention. Order of detention being unsustainable is quashed. Further

custody of the detenue shall be governed in accordance with the orders as shall be passed by the court of competent jurisdiction in connection with

criminal cases registered against him, as referred to above.

Disposed of as above.