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2017 DIGILAW 123 (JK)

Naveed Manzoor Najar v. State of J&K

2017-03-13

B.S.WALIA

body2017
JUDGMENT : B.S. Walia, J. 1. Order of detention of the petitioner, i.e., Annexure-A dated 30.12.2015 was passed u/s. 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the Act) for a period to be specified by the Government on the recommendations of the Advisory Board. Learned counsel refers to Annexure 'B', i.e., Govt. Order No. Home/PB-V/429/2016, dated 28.06.2016 which records that on receipt of opinion from the Advisory Board, the Government vide Order No. HOME/PB-V/84/2016, dated 03.02.2016 confirmed order of detention Annexure-A dated 30.12.2015 and directed the detention of the petitioner in District Jail, Kathua for a period of six months in the first instance. Order Annexure-B further records that the order of detention of the petitioner for six months was scheduled to expire on 30.06.2016 whereupon ADGP, CID, vide letter No. CID/BR/1-N/2016/Bla/1317, dated 17th June, 2016 recommended extension of period of detention of the petitioner whereupon, in exercise of the powers conferred u/s. 3 read with Section 11 of the Act, the Government ordered detention of the petitioner in District Jail, Kathua for a further period of six months. Learned counsel contends that the order of detention was passed and extended u/s. 3 of the Act and in view of the provisions of Section 11 read with Section 9(f) of the Act and the case not being covered u/s. 10 of the Act, the maximum period for which the petitioner could be detained was one year. Learned counsel contended that the petitioner already having remained in detention for a period of close to 14-1/2 months w.e.f. 30.12.2015, i.e., date of initial order of detention, detention of the petitioner beyond one year was without authority of law. Section 3, 9, 10 & 11 of the Act are reproduced hereunder : Section 3: 3. Learned counsel contended that the petitioner already having remained in detention for a period of close to 14-1/2 months w.e.f. 30.12.2015, i.e., date of initial order of detention, detention of the petitioner beyond one year was without authority of law. Section 3, 9, 10 & 11 of the Act are reproduced hereunder : Section 3: 3. Power to make orders detaining certain persons.- (1) The Central Government or a State Government, or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner) that, with a view to preventing him from engaging in illicit traffic in narcotic drugs and psychotropic substances, it is necessary so to do, make an order directing that such person be detained. (2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purposes 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. Section 9 9. Section 9 9. Advisory Boards.-For the purposes of sub-clause (a) of clause (4) and sub-clause (c) of clause (7) of the article 22 of the Constitution- (a) the Central Government and each State Government shall, whenever necessary, constitute one or more Advisory Boards each of which shall consist of a Chairman and two other persons possessing the qualifications specified in sub-clause (a) of clause (4) of article 22 of the Constitution; (b) save as otherwise provided in section 10, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order, make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution; (c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person, called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within eleven weeks from the date of detention of the person concerned; (d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board; (e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential; (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith. Section 10 10. Cases in which and circumstances under which persons may be detained for periods longer than three months without obtaining the opinion of Advisory Board.- (1) Notwithstanding anything contained in this Act, any person (including a foreigner) in respect of whom an order of detention is made under this Act at any time before the [31st day of July, 1999], may be detained without obtaining, in accordance with the provisions of sub-clause (a) of clause (4) of article 22 of the Constitution, the opinion of an Advisory Board for a period longer than three months but not exceeding six months from the date of his detention, where the order of detention has been made against such person with a view to preventing him from engaging in traffic in narcotic drugs and psychotropic substances, and the Central Government or any officer of the Central Government, not below the rank of an Additional Secretary to that Government, specially empowered for the purposes of this section by that Government, is satisfied that such person engages or is likely to engage in illicit traffic in narcotic drugs and psychotropic substances into, out of, through or within any area highly vulnerable to such illicit traffic and makes a declaration to that effect within five weeks of the detention of such person. Explanation 1.- In this sub-section, "area highly vulnerable to such illicit traffic" means- (i) the Indian customs waters. Explanation 1.- In this sub-section, "area highly vulnerable to such illicit traffic" means- (i) the Indian customs waters. (ii) the customs airports; (iii) the metropolitan cities of Bombay, Calcutta, Delhi, Madras and the city of Varanasi; (iv) the inland area one hundred kilometres in width from the coast of India falling within the territories of the States of Andhra Pradesh, Goa, Gujarat, Karnataka, Kerala, Maharashtra, Orissa, Tamil Nadu and West Bengal and the Union territories of Daman and Diu and [Puducherry]; (v) the inland area one hundred kilometres in width from- (a) the India-Pakistan border in the States of Gujarat, Punjab and Rajasthan; (b) the India-Nepal border in the States of Bihar, Sikkim, Uttar Pradesh and West Bengal; (c) the India-Burma border in the States of Arunachal Pradesh, Manipur, Mizoram and Nagaland; (d) the India-Bangladesh border in the States of Assam, Meghalaya, Tripura and West Bengal; (e) the India-Bhutan border in the States of Arunachal Pradesh, Assam, Sikkim and West Bengal; (vi) such other area or customs station, as the Central Government may, having regard to the vulnerability of such area or customs station, as the case may be, to illicit traffic, by notification in the Official Gazette, specify in this behalf. Explanation 2.- For the purposes of Explanation 1, "customs station" has the same meaning as in clause (13) of section 2 of the Customs Act, 1962 (52 of 1962). (2) In the case of any person detained under a detention order to which the provisions of sub-section (1) apply, section 9 shall have effect subject to the following modifications, namely:- (i) in clause (b), for the words "shall, within five weeks", the words "shall, within four months and two weeks" shall be substituted; (ii) in clause (c),- (a) for the words "the detention of the person concerned", the words "the continued detention of the person concerned" shall be substituted; (b) for the words "eleven weeks", the words "five months and three weeks " shall be substituted; (iii) in clause (f), for the words "for the detention", at both the places where they occur, the words "for the continued detention" shall be substituted. Explanation 1.- In this sub-section, "area highly vulnerable to such illicit traffic " means- (i) the Indian customs waters; (ii) the customs airports; (iii) the metropolitan cities of Bombay, Calcutta, Delhi, Madras and the city of Varanasi; (iv) the inland area one hundred kilometres in width from the coast of India falling within the territories of the States of Andhra Pradesh, Goa, Gujarat, Karnataka, Kerala, Maharashtra, Orissa, Tamil Nadu and West Bengal and the Union territories of Daman and Diu and [Puducherry]; (v) the inland area one hundred kilometres in width from- (a) the India-Pakistan border in the States of Gujarat, Punjab and Rajasthan; (b) the India-Nepal border in the States of Bihar, Sikkim, Uttar Pradesh and West Bengal; (c) the India-Burma border in the States of Arunachal Pradesh, Manipur, Mizoram and Nagaland; (d) the India-Bangladesh border in the States of Assam, Meghalaya, Tripura and West Bengal; (e) the India-Bhutan border in the States of Arunachal Pradesh Assam, Sikkim and West Bengal; (vi) such other area or customs station, as the Central Government may, having regard to the vulnerability of such area or customs station, as the case may be, to illicit traffic, by notification in the Official Gazette, specify in this behalf. Explanation 2.- For the purposes of Explanation 1, "customs station" has the same meaning as in clause (13) of section 2 of the Customs Act, 1962 (52 of 1962). (2) In the case of any person detained under a detention order to which the provisions of sub-section (1) apply, section 9 shall have effect subject to the following modifications, namely:- (i) in clause (b), for the words "shall, within five weeks", the words "shall, within four months and two weeks" shall be substituted; (ii) in clause (c),- (a) for the words "the detention of the person concerned", the words "the continued detention of the person concerned" shall be substituted; (b) for the words "eleven weeks", the words "five months and three weeks" shall be substituted; (iii) in clause (f), for the words "for the detention", at both the places where they occur, the words "for the continued detention" shall be substituted. Section 11 11. Section 11 11. Maximum period of detention.-The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 10 do not apply and which has been confirmed under clause (f) of section 9 shall be one year from the date of detention, and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 10 apply and which has been confirmed under clause (f) of section 9, read with sub-section (2) of section 10, shall be two years from the date of detention: Provided that nothing contained in this section shall affect the power of appropriate Government in either case to revoke or modify the detention order at any earlier time." 2. That as per Section 9(f), where the Advisory Board reports that there is sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Section 11 on the other hand provides the maximum period for which any person may be detained. As per Section 11, where Section 10 does not apply and detention has been confirmed under Section 9(f) then the maximum period of detention is one year from the date of detention but if the order of detention has been confirmed u/s. 9(f) and Section 10(2) applies, then in that case the maximum period of detention is two years from the date of order of detention. 3. Learned counsel contends that Section 10 is not applicable since the order of detention Annexure-A dated 30.12.2015 was passed u/s. 3 and was confirmed by the Government on 03.02.2016 on receipt of opinion from the Advisory Board and petitioner's detention was ordered for a period of six months in the first instance. Learned counsel states that the initial order of detention as well as extension thereof both were under Section 3 of the Act and in this context reference is made to initial order of extension Annexure-B dated 28.06.2016 as also subsequent order of extension passed by the Government vide No. Home/PB-V/2883/2016, dated 27.12.2016. Order dated 27.12.2016 referred to by learned counsel for the petitioner is not on record. However, copy thereof produced by learned AAG is taken on record. 4. Order dated 27.12.2016 referred to by learned counsel for the petitioner is not on record. However, copy thereof produced by learned AAG is taken on record. 4. In the aforementioned background, learned counsel contends that detention of the petitioner having been ordered and extended u/s. 3 of the Act, Section 10 of the Act not being applicable, maximum period of detention in a case not covered u/s. 10 with detention order having been passed u/s. 3 and confirmed u/s. 9(f) was one year, therefore the detention of the petitioner beyond one year beyond 30.12.2015 was legally unsustainable. Learned counsel contends that in view of the petitioner having already remained under detention for a period of close to 14-1/2 months, petitioner is entitled to be set free forthwith as the maximum period for which the detention of the petitioner could have been ordered was one year. 5. Mr. B.A. Dar, learned AAG on the other hand contends that although the order of detention has been passed under Section 3 of the Act, yet as per Section 10, period of detention of a person engaging or likely to engage in illicit traffic in narcotic drugs and psychotropic substances into, out of, through or within any area highly vulnerable to such illicit traffic and in respect of whom a declaration to that effect had been made within five weeks of his detention, was two years in terms of Section 11 of the Act. 6. Learned AAG was asked to point out the material on the basis of which the case of the petitioner was sought to be falling within the ambit of Section 10 of the Act. However, neither could learned AAG point out whether the area where the petitioner was engaging or likely to engage in illicit traffic in narcotic drugs and psychotropic substances into, out of, through or within any area fell within a highly vulnerable to such illicit traffic as contemplated in Section 10 and whether any declaration to that effect/had been made in respect of the petitioner. Neither learned AAG could point out any material nor could refer or produce any declaration as referred to in Section 10(1) of the Act qua the petitioner. Neither learned AAG could point out any material nor could refer or produce any declaration as referred to in Section 10(1) of the Act qua the petitioner. Learned AAG was specifically asked to point out whether the case of the petitioner fell within the term "area highly vulnerable to such illicit traffic" as mentioned in Section 10(1) and Explanation 1 of Section 10 or any other clause of Section 10. However, learned AAG could not point out the case of the petitioner being covered under any clause or for that matter explanation to Section 10 of the Act. 7. In the circumstances, it is obvious that maximum period of detention qua order of detention u/s. 3 of the Act and in view of the same having been confirmed u/s. 9(f), thereafter having been extended also u/s. 3 of the Act is one year. Applicability of Section 10 has neither been substantiated nor any material in respect thereto been referred to by learned AAG. Resultantly, the petition is allowed. Detention of the petitioner beyond one year of order of detention, i.e., Annexure-A No. DIVCOM- "K715/2015, dated 30.12.2015 is held to be contrary to the mandate of Section 11 of the Act. The petitioner having remained in detention for 14-1/2 months as against the maximum one year permissible u/s. 11, is ordered to be released from custody forthwith, if not required in any other case. Habeas Corpus Petition is allowed in aforementioned terms.