Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 317 (JK)

State of J&K v. Irshad Hussain Parray

2018-05-17

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. 1. An application came to be filed before the Learned Sessions Judge, Bandipora, for shifting the custody of the respondent from District Jail Udhampur to District Jail Baramulla on the grounds that the accused is facing trial before him in case bearing FIR No. 41/2015 of Police Station Hajin U/s 8/20 NDPS Act. It is also stated in the Application that it is not possible for the members of the family of the petitioner to go to Udhampur to see him as it shall involve a huge financial expenditure. The Learned Court determined the said application by an Order dated 30.03.2017 directing the change of the custody of the petitioner/accused from District Jail Udhampur to District Jail, Baramulla with a further stipulation that the In-charge District Jail, Baramulla shall produce the accused before the Court presided over by him on the next date. 2. The State of Jammu and Kashmir (Home Department) has challenged the validity of the said order in this petition filed U/s 561-A No. 302/2017 on the grounds inter-alia, that the order impugned cannot sustain in the eyes of law. The State Government has the power to regulate the lodgment and detention of the detenue. It is also stated that under Section 5 of the J&K Prevention of Illegal Traffic in Narcotic Drugs and Psychotropic Substances Act, 1998, the power to regulate, the conditions of detention has to be exercised by the Government. 3. It needs must be said that the respondent has acknowledged the receipt of notice but has not appeared in the Court to contest the petition. 4. Heard and considered. 5. The respondent has been detained by the Divisional Commissioner, Kashmir in exercise of powers vested in him under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1998 in terms of Order No. DWCOM "K", 49/2017 dated 16.02.2017 with the direction to lodge the detenue in District Jail, Udhampur for the period specified therein. This detention order has been upheld by the Court in HCP No. 71/2017 titled "Irshad Hussain Parray V. State of J&K & Ors." The order impugned in this petition has been passed after the order of the detention of the detenue. This detention order has been upheld by the Court in HCP No. 71/2017 titled "Irshad Hussain Parray V. State of J&K & Ors." The order impugned in this petition has been passed after the order of the detention of the detenue. Section 5 of J&K Prevention of Illegal Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 which has a direct bearing on the decision of this petition reads as under:- (Power to regulate, place and conditions of detention:- Every person in respect of whom a detention order has been made shall be liable:- (a) to be detained in such place and under such conditions including conditions as to maintenance, interviews or communication with others, discipline and punishment for breach of discipline, as the Government may, by general or special order, specify; and (b) to be removed from one place of detention to another place of detention, within the State.) 6. Section 5 on the face of it gives the power to regulate, place and the conditions of the detention to the Government. A detenue can be removed from one to the other place of detention within the state under and in terms of Section 5 cited above. It is purely within the ambit and jurisdiction of the Government to do so. Section 5 is in tune and line with the Section 10 of the Public Safety Act. Interpreting the provisions of Section 10 of the Public Safety Act, this Court in the law laid down in the case of "Suhail Ahmad Kataria v. State Th. Supdt., Central Jail, Srinagar" reported in 2006 (2) JKJ 508 [HC] observed as under:- 7. The detaining authority i.e. executive, while fixing the lodgment, has to take into account the, conditions prevailing in the State, allegations levelled against the accused/detenue, security of the State and the safety of the inmates who are lodged in the jails and also of the staff of the concerned jail. 8. The authority concerned is under legal obligation to bring the detenue before the court on each hearing and it is its duty to provide sufficient security to the detenue also. 9. 8. The authority concerned is under legal obligation to bring the detenue before the court on each hearing and it is its duty to provide sufficient security to the detenue also. 9. In this backdrop, the executive has to exercise powers and it is within its rights to fix lodgment of a detenue outside the State while keeping in view the provision of the Public Safety Act, Criminal Procedure Code, The Prisoners Act and The Prisons Act read with the enabling provisions of the Jail Manual. 10. The trial court, cannot exercise powers while conducting trial in order to give a go-bye to the detention order and is not within its powers to say that the lodgment fixed by the competent authority under the Public Safety Act, is not correct and that the accused be lodged instead of that lodgment to any other jail. The trial court, however, is within its powers to regulate trial and to issue command asking the concerned authorities to produce the accused on each hearing. 7. Taking into the consideration, the dictum of law cited above, the order dated 30/03/2017 passed by the Trial Court cannot sustain in the eyes of law. It is liable to be set aside and as a sequel thereto, the same is quashed. 8. A copy of this order shall be sent to the Learned Pr. Sessions Judge, Bandipora, for information and compliance.