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2016 DIGILAW 564 (JK)

Naseer Ahmad Pandit v. State of J&K

2016-10-26

ALI MOHAMMAD MAGREY, MOHAMMAD YAQOOB MIR

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JUDGMENT : YAQOOB, J. 1. Letters Patent Appeal is directed against the judgment dated 25.04.2016 rendered in HCP No.87/2015, seeking its reversal on various grounds as projected in the memo of appeal. 2. Preventive detention, in effect, is a direct invasion against cherished fundamental right to liberty guaranteed under Article 21 of the Constitution of India. Such custody at times is imperative when a person commits such acts which have direct or indirect impact on the society as a whole, the competent authority is constrained to have resort to preventive measures so as to avoid any disastrous invasion to the rights of other members of the society or security of the State etc. 3. Infringement of right to liberty is not Constitutionally permissible but at times it may be unavoidable to pass the order of detention in the larger interests of public, sometimes for maintaining the public order or some times for avoiding threat to security of the State, sometimes to avoid environmental degradation, loss to forest wealth and also to prevent drug trafficking. 4. Keeping in view the hallmark of the cherished right to liberty in keeping with the object of Article 21 of the Constitution of India, while exercising power to order preventive detention, various procedural and other safeguards available have to be respected and adhered to. It is the bounden duty of the detaining authority to derive subjective satisfaction before passing the order of detention. If record suggests that there is non-application of mind, that ipso facto means that subjective satisfaction is missing. 5. Perusal of the record reveals that the proposal for detention was submitted by Senior Superintendent of Police, Pulwama, on 4th March, 2015, order of detention has been passed on 12th October, 2015, means after a delay of seven months. No reason whatsoever is forthcoming for said delay of seven months. Furthermore, the order of detention dated 12th October, 2015, has been executed on 30th November, 2015. Therefore, there is unexplained delay at both the two stages. On such count order of detention is liable to be quashed. It shall be quite relevant to quote para 20 of the judgment rendered in the case of Rajinder Arora vs. Union of India and others, (2006) 4 SCC 796 : “20. Furthermore no explanation whatsoever has been offered by the Respondent as to why the order of detention has been issued after such a long time. It shall be quite relevant to quote para 20 of the judgment rendered in the case of Rajinder Arora vs. Union of India and others, (2006) 4 SCC 796 : “20. Furthermore no explanation whatsoever has been offered by the Respondent as to why the order of detention has been issued after such a long time. The said question has also not been examined by the authorities before issuing the order of detention.” 6. Para 12 of the judgment rendered in the case of T.A. Abdul Rahman v. State of Kerala ad others ( AIR 1990 SC 225 ), is also advantageous to be quoted : “12. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.” 7. It is quite clear from the perusal of the records that the detaining authority has not properly applied the mind as the factual position has not been taken care of i.e. the detenue in connection with case registered as FIR No.30/2015 P/S Pulwama was arrested on 31.01.2015 when 124 bottles of Rancof syrup were allegedly recovered from his possession. He was released on interim bail vide order dated 11.03.2015 passed by the Court of learned Sessions Judge, Pulwama. Then the said interim bail has been confirmed vide order dated 20th May, 2015. The position of release on bail has not been made mention of in the grounds of detention. Either same has not been brought to the notice of the detaining authority or otherwise detaining authority has ignored the same. A serious question, when detenue was arrested on 31.01.2015, he remained on interim bail till 20th May, 2015, in case his activities would have been prejudicial to the safety of the society, then at least the authorities concerned would have moved an application for rejecting the bail application or for recall of the interim bail order or then police would have challenged the final order confirming the interim bail. 8. 8. The position is made worst as the proposal for detention was submitted by Senior Superintendent of Police on 4th March, 2015 but the detaining authority did not pass any order till 12th October, 2015, which clearly suggest that deriving of subjective satisfaction by the detaining authority, which was sine qua non for passing the order of detention, has been a casualty. Non application of mind on the part of detaining authority is writ large. On such ground also, order of detention was liable to be quashed. 9. In the grounds of detention reference is to the various activities of the detenue suggesting that prior to the date of detention for about three years the detenue has been directly or indirectly involved in drug peddling and other anti-social activities, as a result whereof as many as six cases have been registered against him, one in the year 2002, two in the year 2006, one in the year 2014 and two in the year 2015. Out of these six cases, only two cases are registered for having allegedly committed the offence punishable under Section 8/22 NDPS Act, one in the year 2014 and another in the year 2015. From January, 2015 no case or any allegation against the detenue for having been active in drug peddling has been brought to the notice of the Court, more particularly for the period when he was on bail from 11th March, 2015 till 12thOctober, 2015. This aspect of the matter has been totally ignored by the detaining authority. 10. Non application of mind is further exposed by the fact that in the order of detention it has been recorded by the detaining authority that it is necessary to prevent the detenue from committing any of the acts within the meaning of “illicit traffic” and “maintenance of public order”. Under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, power can be exercised vis-à-vis illicit drug trafficking only, how the detaining authority has recorded “maintenance of public order” itself suggests that the detaining authority has not been certain about activities of the detenue. It has been rightly projected in para 8(V) of the memo of appeal that the detaining authority himself has not been satisfied whether the activities of the detenue would fall within the ambit of “illicit traffic” or “maintenance of public order”. 11. It has been rightly projected in para 8(V) of the memo of appeal that the detaining authority himself has not been satisfied whether the activities of the detenue would fall within the ambit of “illicit traffic” or “maintenance of public order”. 11. Perusal of the records also suggests that the detenue has been deprived of making an effective representation, as is a guarantee to him in terms of Article 22(5) of the Constitution of India. Reference to registration of six cases in the grounds of detention would make it imperative for the detaining authority to provide all material of those cases to the detenue. The detenue has been furnished grounds of detention and the order of detention. The material forming base for grounds of detention has not been furnished to him. 12. All the afore-stated positions as adumbrated have escaped the consideration, as a result whereof judgment impugned dated 25.04.2016 is unsustainable, accordingly is, set aside. The order of detention bearing No.DIVCOM-“K”/10/2015 dated 12.10.2015 is also quashed. The detenue has been in the preventive custody from 30th November, 2015, means for about 11 months, shall be released forthwith if not required in connection with any other case. 13. Appeal succeeds as above.