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2012 DIGILAW 121 (JK)

Rameez Afzal Ganie v. State of J&K & Ors.

2012-03-27

MUZAFFAR HUSSAIN ATTAR

body2012
1. One, Rammez Afzal Ganie S/O. Mohd Afzal Ganie R/O. Kulgam (for short "Detenue") has been ordered to be detained by the respondent no. 2, vide Order No. Divcom "K"/01/2012 dated 19th January, 2012 in exercise of powers conferred upon him under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 (for short "Act of 1988"). It is this order, which is called in question in this petition. 2. On notice issued, respondents have filed counter affidavit/reply affidavit. 3. Mr. G.A.Lone, learned counsel for the detenu invited the attention of the Court to Section 3 as also Section 2 (c) of the Act of 1988 and submitted that the order of detention has been passed without authority of law, as in the grounds of detention it has been stated that from the vehicle of the detenu, 270 bottles of liquor were recovered and he was booked under FIR No. 83/2010 for having allegedly committed offence under Section 50 of Excise Act. Learned counsel also invited the attention of the Court to page 3 of the counter affidavit to show that allegations against the detenu are that he is allegedly involved in liquor smuggling and in this behalf two FIRs' have been registered in the year 2008, one in the year 2009 and one in year 2010. However, reference to one FIR of 2010 alone is made in the grounds of detention. Learned counsel submitted that on this ground alone, the detention order deserves to be quashed. 4. Mr. S.A. Naik, learned AAG, while referring to the grounds of detention as also the stand taken in the counter affidavit submitted that the detenu has been indulging in illicit trade of liquor. Learned counsel, however, could not justify the detention of the detenu under the provisions of Act of 1988. 4. Mr. S.A. Naik, learned AAG, while referring to the grounds of detention as also the stand taken in the counter affidavit submitted that the detenu has been indulging in illicit trade of liquor. Learned counsel, however, could not justify the detention of the detenu under the provisions of Act of 1988. Section 2 (c) and Section 3 of the Act of 1988 are taken note of; "2.(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, conceal-use of consumption, import inter-State, export under-State or Transshipment, of narcotic drugs or 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 sub-clauses (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) harboring 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 license, permit or authorization issued there-under; 3. Powers to make orders detaining certain persons (1) The Government or any officer of the Government, not below the rank of the Secretary to the Government, specially empowered for the purposes of this Section by the Government, may if satisfied with respect to any person (including a foreigner) that, with a view to preventing him from committing any of the acts within the meaning of "illicit traffic" as defined in clause (c) of Section 2, it is necessary so to do, make an order directing that such person be detained. (2) For the purpose of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention..." 5. The respondent no. 2 is authorized to order for detention of a person for preventing him from committing any acts within the meaning of "illicit traffic" as defined in clause (c) of Section 2. 6. The said definition clause defines "illicit traffic" to mean cultivating any coca plant etc, cultivating the opium, poppy or any cannabis plant, engaging in the production, manufacture, possession etc of the Narcotic Drugs or Psychotropic Substances, dealing in Narcotic drugs or Psychotropic Substances etc. 7. Conducting of illicit trade in liquor which is offence under the Excise Act is not covered by the definition of "illicit traffic" as defined in Section 2 (c) of the Act of 1988. Admittedly, the detenu is not involved in "illicit traffic" as defined in Section 2 (c) of the Act of 1988. The respondent no. 2 was, thus, lacking authority and jurisdiction to order for detention of the detenu. 8. For the above stated reasons, this petition is allowed. By issuance of writ of Certiorari, Detention Order No. "K"/01/2012 dated 19th January, 2012 passed by respondent no. 2 is quashed. Respondents are directed to release the detenu, Rammez Afzal Ganie S/O. Mohd Afzal Ganie R/O. Kulgam from preventive custody.