Shabir Ahmad Wani vs State and Others

Hasnain Massodi, Judge

Challenge to order No. DivCom-""K""/07/2011 dated 26.07.2011, whereby Divisional Commissioner, Kashmir (hereinafter referred to as

Detaining Authority"") has in exercise of powers u/s 3, J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988,

ordered preventive detention of Shri Shabir Ahmad Wani son of Ali Mohammad Wani resident of Wanpora Saria Tehsil Chadoora District

Budgam (hereinafter called as ""detenue), is destined to succeed for the following reasons:-

The detention order makes mention of material record such as ""dossier and other connected documents"" relied upon by the detaining authority

while making the detention order. The detention order also makes reference to a communication received from Senior Superintendent of Police,

Budgam. The detention record reveals that none of the documents referred to in the detention order was ever supplied to the detenue. The grounds

of detention make reference to case-FIR No. 157/2010 u/s 15/08 NDPS Act; FIR No. 06/2010 u/s 15/08 NDPS Act; and FIR No. 68/2011 u/s

8/15 NDPS Act, Police Station Chadoora, to have been registered against the detenue. The involvement of detenue in the aforementioned cases

appears to have heavily weighed with the detaining authority while making detention order. The record does not indicate that copies of

aforementioned First Information Reports, statements recorded u/s 161 Cr.P.C. and other material collected in connection with investigation of

aforesaid cases, were ever supplied to detenue. The material, mentioned above, thus assumes significance in the facts and circumstances of the

case. It needs no emphasis, that the detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights

guaranteed under Article 22 (5), Constitution of India and Section 3(2), J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988, (for short ""Act"") unless and until the material on which the detention order is based, is supplied to detenue. It is only after

the detenue has all said material available that the detenue can make an effort to convince detaining authority and thereafter Government, that their

apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied material, on which detention order is

based, the detenue cannot be in a position to make an effective representation against his detention order. The failure on the part of detaining

authority to supply material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable.

The detention order on the face of it does not indicate proper application of mind on part of the detaining authority. The detention order in the

present case has been made to prevent the detenue from committing any of the acts within the meaning of ""illicit traffic"" and ""maintenance of public

order"". A bare look at Section 3 of the Act reveals that the detaining authority is empowered to make an order of detention to prevent a person

from committing any of the acts"" within the meaning of ""illicit traffic"" as defined in Clause (c) of Section (2). The detaining authority in the present

case by mentioning two distinct terms i.e., ""illicit traffic"" as well as ""maintenance of public order"" has depicted total non-application of mind. It

appears that the detaining authority has not been satisfied himself whether the activities of the detenue were coining within the meaning of ""illicit

traffic"" or ""maintenance of public order"". It needs no emphasis that ""illicit traffic"" and ""maintenance of public order"", are two different concepts that

may in a very small number of cases overlap. While Section 3(1) of the Act defines the expression ""with a view to preventing him from committing

any of the acts within the meaning of ""illicit traffic"", the definition of expression ""maintenance of public order"" is not given in the Act. The detaining

authority in effect has ordered preventive detention of the detenue on a ground not within the purview of Section 3 of the Act.

In Amritlal and others v. Union Government (2001) SCC 341, it has been held that, where a person already in custody, is placed under

preventive detention, the detaining authority must, before making such detention order, be satisfied on the basis of available cogent material about

likelihood of the detenue being released on bail and in absence of such satisfaction the detention order cannot be passed.

In Sayed Abdul Ala v. Union of India & Ors AIR 2007 SCW 6974, where detention order was made on an identical ground, it has been held:-

In cases where the detenu is in custody, the detaining authority not only should be aware of the said fact but there should be some material on

record to justify that he may be released on bail having regard to the restriction imposed on the power of the Court, as it may not arrive at the

conclusion that there existed reasonable grounds for believing that he was not guilty of such offence and that the detenue could not indulge in similar

activity, if set at liberty.

The Court laid down following principles which must guide Court while arriving at a decision that the order of detention can be validly passed

despite the detenue being in custody:-

(1) If the authority passing the order is aware of the fact that he is actually in custody;

(2) if he had a reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail,

and (b) that on being released, he would in all probability indulge in prejudicial activities; and

(3) it is felt essential to detain him to prevent him from so doing.

In the present case as already pointed out, there was no material before the Detaining Authority to satisfy itself that there was likelihood of the

detenue being released on bail. The material available before the Detaining Authority on the other hand ought to have led the Detaining Authority to

the opposite conclusion. The order, in the circumstances, suffers from non-application of mind.

Viewed thus, the petition is allowed and detention order No. DivCom-""K""/07/2011 dated 26.07.2011, passed by the Divisional Commissioner,

Kashmir-respondent No. 2, directing detention of Shri Shabir Ahmad Wani son of Ali Mohammad Wani resident of Wanpora Saria Tehsil

Chadoora District Budgam, quashed.

The respondents, in view of quashment of detention order, are stripped of any authority to detain the detenue under order No. DivCom-

K""/07/2011 dated 26.07.2011. Resultantly, the respondents are directed to release the detenue from preventive detention, ordered vide order

No. DivCom-""K""/07/2011 dated 26.07.2011.

Detention record be returned to counsel for respondents. Disposed of.