Naseer Ahmad Pandit vs State of J&K

Mr. Tashi Rabstan, J. - The petitioner has preferred this petition questioning the preventive detention Order No. DIVCOM-""K710/2015, dated

12th October 2015, passed against Shri Naseer Ahmad Pandit son of Mohammad Rajab Pandit resident of Karimabad, Pulwama (for short

detenu"") by respondent no. 2 i.e. Divisional Commissioner, Kashmir. The said detention order has been passed in exercise of powers under

Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The case set up in the petition on hand is that the detenu, working as Daily Wager in Horticulture Department, was arrested on 30th January

2015 in case FIR No. 30/2015, under Section 8/22 NDPS Act P/S Pulwama. The detenu is said to have approached the court of Principal

District and Sessions Judge, Pulwama, on 11th March 2015 and interim bail valid up to 23rd March 2015 was granted, which was extended and

finally made absolute vide order dated 20th May 2015. It is pleaded that detenu on 30th November 2015 was called by Police Station Pulwama,

wherefrom he was shifted to District Jail Kupwara and that the petitioner approached the police to know the reasons for shifting of his son to

District Jail Kupwara, where he came to know that detenu has been placed under preventive detention. The detention order is assailed on the

ground that there is considerable delay between release of detenu on 11th March 2015 to passing of impugned detention order. It is averred that

there is inordinate delay of one month and 18 days in execution of detention order as the impugned detention order was passed on 12th October

2015 while as it was executed upon detenu on 30th November 2015 and that the grounds of detention are vague, irrelevant, untrue and

ambiguous. It is contended that there is total non-application of mind on part of the detaining authority in passing detention order. It is maintained in

petition that grounds of detention mention that 124 bottles of Rancof Syrup were recovered from detenu's possession but the Rancof Syrup is not

a psychotropic substance as per the list of Psychotropic Substances attached to the Schedule to NDPS Act, 1985. It is also urged that there is no

whisper made by detaining authority that the detenu after his arrest in case FIR No. 30/2015 may apply for grant of bail or that the bail may be

granted to him or that there is every likelihood that detenu may be released on bail.

Counter has been filed by respondents, in which they state that the detention order has been passed with a view to prevent the detenu from

indulging in illegal trade of illicit traffic in Narcotic Drugs and Psychotropic Substance after the detaining authority satisfied himself that the detenu is

indulging in illegal trade in an organised manner, which is a great threat for sustaining the conservative values of the society and that drug trafficking

also poses great threat to the society for the reason that the proceeds of the drug sale can be utilised for financing of other criminal activities. It is

insisted that the detenu started dealing in illicit trafficking in narcotic drugs and psychotropic substance since his childhood which he carried

discreetly by creating contacts with likeminded elements in Pulwama area and that the detenu has been arrested several times and after getting

released he has recycled into the illicit trade of drugs. The detenu, according to respondents, is involved in as many as six cases - FIRs, lodged

right from the year 2002 till 2015. Contention of respondents in the counter affidavit is that detenu is making the young generation, who are

otherwise future of the nation, to become drug addicts, thereby spoiling their career and also the future of the Nation. Respondents aver that

detenu was apprehended by police several times before, even then he had not desisted from carrying out trade of illicit drugs and lastly he was

arrested on 31st January 2015 when 124 bottles of Rancof Syrup were recovered from his possession.

I have heard learned counsel for parties and considered the matter. I have gone through the detention record made available by learned

Additional Advocate General.

This Court vide judgment dated 28th March 2016 passed in HCP No. 11/2016 titled Jahangeer Ahmad Khan v. State of J&K and

others 2016(2) JKJ 468 [HC] has comprehensively discussed whatever is subject matter of instant petition. This Court observed that ""it is not a

number of acts that are to be determined for detention of an individual but it is impact of the act which is material and determinative. In the instant

case the act of detenu relates to drug trafficking, which has posed serious threat, apart from health and welfare of the people, to youth, most

particularly unemployed youth, to indulge in such acts, ramifications thereof would be irreversible.

Apart from the above discussion, learned counsel appearing for petitioner, during course of argument, has placed reliance on decisions passed in

Shabir Ahmad Wani v. State and ors reported in JKJ 2011 (4) 302 [HC]; Sheikh Mohd. Sharief v. State and ors reported in JKJ 2011

(1) 577 [HC]; Yasmeen Raja v. State of J&K and ors. reported in SLJ 2011 663 : 2011 (2) JKJ 28 [HC] and Rekha v. State of Tamil

Nadu and anr., reported in (2011) 4 SCC 260 : (2011) 5 SCC 244 : (2011) 2 SCC (Cri.) 596. The set of facts and circumstances of the cited

cases by learned counsel for petitioner, are totally distinguishable from the facts and circumstances of present case. In those cases there had been

possibility of detenu to be released on bail. However, in the present case it is not only that detenu was released on bail, but he was found involved

in almost all the drug peddling incidents which took place in adjoining areas of Pulwama town and the detenu is said to be involved in six

cases/FIRs and even after he was bailed out, he every time recycled into the illicit trade and has not bothered to mend his activities.

It is pertinent to point out that the Supreme Court in the cases of D.M. Nagaraja v. Government of Karnataka and others, reported in

(2011) 10 SCC 215 and G. Reddeiah v. Government of Andhra Pradesh and another, reported in (2012)2 SCC 389 has considered the

earlier decision in the case of Rekha v. State of Tamil Nadu and anr., (2011) 4 SCC 260 (2011) 5 SCC 244 : (2011) 2 SCC (Cri.) 596 and

distinguished it. In the case of D.M. Nagaraja (supra), it is observed:

The learned counsel for the appellant very much relied on a decision of Apex Court in Rekha. In the above case, against the detention order

dated 8.4.2010 imposed on Ramkrishnan under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest

Offenders, Goondas, Immoral Traffic, Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 on the allegation that he was

selling expired drugs after tampering with labels and printing fresh labels showing them as non-expired drugs, his wife filed a habeas corpus petition

before the Madras High Court. The said writ petition came to be dismissed. Hence, the wife of the detenu therein, approached the Apex Court by

way of special leave to appeal.

In the judgment in Rekha, Apex Court has extracted the detention order and the grounds for detaining him under the Tamil Nadu Act, 1982.

The grounds show that there is reference to one incident relating to selling expired drugs and the detaining authority by pointing out that necessary

steps are being taken by his relatives to take him out on bail and since in similar case, bails were granted by the courts after lapse of some time and

if he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public health and order and recourse to

normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, on the materials placed and

after fully satisfying, the detaining authority has passed an order under the Tamil Nadu Act, 1982. In para 7, the Bench has pointed out that in the

grounds of detention, no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. The

grounds retracted therein also are bereft of any further details. In those circumstances, this Court taking note of various earlier decisions came to

the conclusion that normal recourse to ordinary law would be sufficient and there is no need for invocation of the special Act.

In the case on hand, we have already extracted criminality, criminal activities starting from the age 30 and details relating to eleven cases

mentioned in the grounds of detention.

In view of enormous materials which are available in the grounds of detention, such habituality has not been cited in the above referred Rekha,

we are satisfied that the said decision is ""distinguishable"" on facts with reference to the case on hand and the contention based on the same is liable

to be rejected.

Thus, from the decision in the case of Nagaraja (supra), it is clear that each case will have to be decided on the peculiar facts of that case. In the

case of G. Reddeiah (supra), the Supreme Court in paragraph 23, observed as under:

Though an attempt was made to nullify the order of detention by drawing our attention to the decision of Apex Court in Rekha v. State of

T.N. (2011) 5 SCC 244: (2011) 2 SCC (Cri.) 596 : (2011) 4 SCC 260 on going through the factual position and orders therein and in view of

the enormous activities of the detenu violating various provisions of IPC, the A.P. Act and the Rules, continuous and habituality in pursuing the

same type of offences, and taking note of the abundant factual details as available in the grounds of detention and also of the fact that all the

procedures and statutory safeguards have been fully complied with by the detaining authority, we are of the view that the said decision is not

applicable to the case on hand. On the other hand, we fully agree with the reasoning of the detaining authority as approved by the Government and

upheld by the High Court"".

It may not be out of place to point out here that it is well settled that a judgment of a Court is not to be read mechanically as a Euclid's theorem

nor as if it was a Statute. On the subject of precedents Lord Halsbury, L.C. said in Quinn v. Leathern, 1901 AC 495.

Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character

which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular

facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the

whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is

only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a

mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at

all.

In Ambica Quarry Works v. State of Gujarat and others reported in (1987) 1 SCC 213 the Hon'ble Supreme Court observed that ""The

ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority

for what it actually decides and not what logically follows from it"".

In Bhavnagar University v. Palittana Sugar Mills Pvt. Ltd. reported in (2003) 2 SCC 111 the Supreme Court observed that ""It is well

settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision"". As held in Bharat

Petroleum Corporation Ltd. and another v. N.R. Vairamani and another reported in AIR 2004 SC 4778 a decision cannot be relied on

without disclosing the factual situation. In the same judgment the Hon'ble Supreme Court also observed:

Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on

which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out

of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be

construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy

discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words

of statutes; their words are not to be interpreted as statutes"".

In London Graving Dock Co. Ltd. v. Horton (1951 AC 737 at page 761) Lord Mac Dermot observed that ""The matter cannot, of

course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of

interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished

judge"".

In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, ""Lord Atkin's speech ... is not to be treated as if it was a

statute definition ; it will require qualification in new circumstances, Megarry, J. in (1971) 1 WLR 1062 observed: ""One must not, of course,

construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament"". And in Herrington v. British Railways Board (1972 (2)

WLR 537) Lord Morris said:

There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered

that judicial utterances are made in the setting of the facts of a particular case.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by

blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus

classicus : Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant

detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the

colour of another. To decide, therefore, on which side of the line a case fails, the broad resemblance to another case is not at all decisive.

Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you

will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.

The same view was taken by the Hon'ble Supreme Court in Sarva Shramik Sanghatana (K.V.), Mumbai v. State of Maharashtra and

Ors, reported in AIR 2008 SC 946 and in Government of Karnataka and Ors. v. Gowramma and Ors, reported in AIR 2008 SC 863.

Thus, in view of the above decisions including in D.M. Nagaraja and Reddeiah, (supra), it cannot be said that the decision in Rekha's case

(supra) or for that matter other citations referred by learned counsel for petitioner, is/are an authority on the extreme proposition canvassed. The

judicial review of the subjective satisfaction reached by the detaining authority, therefore, will have to be tested on case to case basis and if tangible

justification is spelt out in the grounds of detention, it is imminent to issue order of preventive detention qua him that would be permissible and

legitimate.

From the decisions in the case of D.M. Nagaraja and Reddeiah, (supra) it is clear that each case will have to be decided on its own facts. The

facts in the present case are that in the preamble which is reflected in paragraph 01 of the grounds of detention, it is seen that the detenu is involved

in six cases.

The grounds of detention clearly advert to the fact that 124 bottles of Rancof Syrup were recovered from his possession and the contraband

material was sent to Forensic Laboratory, Srinagar, for ascertaining its veracity and the report bearing No. FSL/297-CST/Sgr, dated 10th April

2015 confirms it being a narcotic substance. It is also noted that the detenu was found to be involved in almost all the drug peddling incidents that

took place in adjoining areas of the Pulwama Town since last three years.

Perusal of the detention record reveals that the detenu, at the time of execution of detention order, was provided copy of the detention order,

copy of the grounds of detention, and other material that finds mention in the detention order, to enable the detenu to make a representation against

his detention. The detenu has also been informed that he can file representation against his detention. The grounds of detention are definite,

proximate and clear from any ambiguity. The detenu is informed with sufficient clarity what actually weighed with the Detaining Authority while

passing the detention order. The Detaining Authority has narrated facts and figures that made the authority to exercise its powers under Section (3)

of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, and record subjective satisfaction that the detenu was

required to be placed under preventive detention in order to prevent him from committing the offence under the provisions of Illicit Traffic in

Narcotic Drugs and Psychotropic Substance Act, 1988. The detaining authority has informed the detenu that the detenu is an accused in as many

as in 06 criminal cases, involving drug peddling and other anti-social activities, which has caused great threat to the health, wealth and welfare of

the people especially young generation in the State in general and District Pulwama in particular, besides activities of detenu have deleterious effect

on the National and State economy and that detenu was bailed out but every time he recycled into the illicit trade and has not bothered to mend his

activities. So viewed the detenu is not to be heard saying that any of his Constitutional and Statutory rights have been violated while the detention

order in question was slapped on him and thereafter executed.

For all what has been discussed above, the petition is dismissed.

Detention record be returned to the counsel for respondents.