Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 632 (JK)

Sheikh Mohd. Sharief v. State

2010-12-16

Hasnain Massodi

body2010
1. Challenge to order No. PITNDPS/02/09 dated 23rd of November, 2009, whereby Divisional Commissioner, Jammu (hereinafter referred to as "Detaining Authority") has in exercise of powers under Section (3) J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 read with SRO 247 of 1988, ordered preventive detention of Shri Sheikh Mohd. Sharief S/o Sheikh Hussain Bhai R/o 1601 Shah Nagori ward, opposite Rang Mahal Ahemdabad, Gujarat (hereinafter called as "Detenue"), is destined to succeed for the following reasons:- 1. The detention order on the face of it does not indicate proper application of mind on the part of the Detaining Authority. The detention order in the present case has been made to prevent the detenue "from acting in any manner prejudicial to the health and welfare of the people". A bare look at Section (3) J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short 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, obviously has slapped detention order on the detenue to achieve an object not contemplated by Section (3) of the Act. The omission on the part of the Detaining Authority to opine, whether the alleged activities of the detenue gave rise to apprehension, that the detenue may commit any of the acts within the meaning of "Illicit Traffic" as defined in Clause (c) of Section (2), depicts non application of mind on part of the Detaining Authority. The Detaining Authority in effect has ordered preventive detention of the detenue on a ground not within purview of Section (3) of the Act. 2. The grounds of detention after detailing alleged activities of the detenue over a period of four years (2005-2009) and labeling the detenue as "notorious and habitual smuggler of Charas", smuggling Charas from Kashmir to different parts of Gujarat, make a pointed reference to case FIR No. 62 of 2008 Police Station, Samba, under Section 18 of NDPS. It is apprehended that "the detenue may manage to get the bail and abscond". The Detaining Authority, thus apprehending that the detenue may get bail and thereafter abscond, fell persuaded to order preventive detention of the detenue. It is apprehended that "the detenue may manage to get the bail and abscond". The Detaining Authority, thus apprehending that the detenue may get bail and thereafter abscond, fell persuaded to order preventive detention of the detenue. The Detaining Authority failed to appreciate that in view of embargo/restrictions on right to get the bail under Section 37 NDPS Act and the contraband alleged to have been recovered, being a commercial quantity (55 Kgs of Charas), there was no likelihood of the detenue being admitted to bail. The Detaining Authority also failed to take note of the order dated 31.3.2009 passed by Sessions Judge, Samba, in bail application laid by the detenue, whereby the application was dismissed and bail declined. In Amritlal and others v. Union Government (2001) SCC 34, it has been held that, where a person already in custody, is placed under preventive detention, the Detaining Authority must be, before making such detention order, satisfied on the basis of available cogent material about likelihood of the detenue being released on bail and in absence of such satisfaction, detention order cannot be passed. In Sayed Abdul Ala v. Union of India & Ors. In Sayed Abdul Ala v. Union of India & Ors. 2007 AIR SCW 6974, where detention order was made on an identical ground, it has been held:- "In cases where the detenue 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 the principles which govern the field so as to enable the court to arrive at a decision that the order of detention can be validly passed despite the detenue being in custody as under:- "(i) 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 the 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. The detention record does not indicate supply of material on which reliance was placed by the Detaining Authority, while making the detention order to the detenue at the time of execution of the detention order or immediately thereafter. 2. The detention order makes reference to case FIR No. 62/2008 Police Station, Samba. The detention record does not indicate that copy of the Dossier prepared by SSP, Samba, copy of the FIR or copies of the statement under Section 161 Cr. PC or other material collected during investigation was supplied to the detenue. 2. The detention order makes reference to case FIR No. 62/2008 Police Station, Samba. The detention record does not indicate that copy of the Dossier prepared by SSP, Samba, copy of the FIR or copies of the statement under Section 161 Cr. PC or other material collected during investigation was supplied to the detenue. The detenue thus, has been deprived of his constitutional right to make an effective representation against his detention. 3. It is well settled law that failure on the part of Detaining Authority to supply material relied upon at the time of making the detention order, to the detenue renders detention order illegal and unsustainable. The law is so well settled that reference to any case law is not necessary. 4. For the reasons discussed above, the petition succeeds. The detention order No. PITNDPS/02/09 dated 23rd of November, 2009 is quashed. The detenue be let off, unless he is required in any other case.