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2018 DIGILAW 374 (JK)

Ishfaq Ahmad Mir v. State of J&K

2018-06-04

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. Impugned in this Habeas Corpus petition is the order of detention bearing No. DIVCOM-“K”/56/2017 dated 05.06.2017, whereby the petitioner has been taken in preventive detention under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. Common ground on both the sides is that initial period of detention of the petitioner has been settled as one year. 2. The order of detention is challenged by the petitioner inter alia on the ground that at the time of passing of the said order, the petitioner was already in the custody of State Authorities because of his arrest in FIR No. 24/2017 under section-8/22 NDPS Act of Police Station, Kralgrund. He was arrested on 11.05.2017. 3. It is contended in the petition, which has been filed on 16.06.2017, that after his arrest the detenue/petitioner had applied for bail before the court of the Chief Judicial Magistrate Handwara but the bail was not granted to him till that date. Learned counsel for the petitioner, Mr. Mohd. Saleem Mir, urged that the impugned order of detention or the grounds of detention formulated by the detaining authority, herein respondent No. 2, does not indicate any compelling reason necessitating preventive detention of the petitioner after he had already been taken in custody by the police for alleged commission of offence under section 8/22 of the NDPS Act. Learned counsel, thus, submitted that preventive detention of the petitioner is illegal for the same having been passed at a time when petitioner was in the custody of the authorities of the State. Learned counsel cited Binod Singh v District Magistrate Dhanbad, Bihar and others, (1986) 4 SCC 416 and Surya Prakash Sharma v State of U.P. and others, 1994 Supp (3) SCC 195. 4. Legal position in regard to preventive detention of a person, who is already in custody of the State Agencies in connection with commission of offence under substantive law allegedly committed by him is well settled. Normally, preventive detention of such a person should not be ordered. Nonetheless, preventive detention of such a person can still be ordered, if the detaining authority has compelling reasons to believe that he is likely to be released in the substantive offence either on bail or due to his acquittal or discharge. Normally, preventive detention of such a person should not be ordered. Nonetheless, preventive detention of such a person can still be ordered, if the detaining authority has compelling reasons to believe that he is likely to be released in the substantive offence either on bail or due to his acquittal or discharge. In Binod Singh’s case (supra), Supreme Court has held that “if a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised” In Surya Prakash Sharma’s case, Supreme Court has referred to an earlier three-Judge Bench judgment in Dharmendra Suganchand Chelawat v Union of India, (1990) 1 SCC 746 , where the question has been answered in following words: “The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention: and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implied that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities." 5. The grounds of detention formulated by the detaining authority inter alia would show that the petitioner is a habitual drug addict, besides being a drug paddler. He has spoiled the youth of the area by supplying them narcotic drugs leading to law and order problem as the youth often commit crimes especially against women. It is stated also that on 11.05.2017 the petitioner tried to give a slip to the police patrol at Kralgund. He has spoiled the youth of the area by supplying them narcotic drugs leading to law and order problem as the youth often commit crimes especially against women. It is stated also that on 11.05.2017 the petitioner tried to give a slip to the police patrol at Kralgund. He, however, was apprehended and 162 strips of ‘Sposmo Proxivon plus containing 24 tablets per strip in all 3888 tablets’ were recovered from the bag in his possession and the aforementioned case was, thus, registered against him. The detaining authority was, thus, of the opinion that it has become imperative to detain the petitioner in preventive detention with a view to prevent him from further committing any offence under the provisions of the NDPS Act. 6. Clear it is that the detaining authority was aware that at the time of passing of the order of detention by him, petitioner had already been arrested and was in custody in connection with offence under section 8/22 NDPS Act, which is a non bailable offence. The order of detention or the grounds of detention would show that the detaining authority has not recorded any reason to believe that there was any possibility of immediate release of the petitioner from custody nor any compelling reason for passing the order of detention at that point of time has been stated. Petitioner’s contention that the bail had not been granted to him as at the time of passing of the impugned order of detention has not been denied. 7. In view of the legal position as stated above, an order of preventive detention against a person passed at a time when that person is already in the custody of the State Authorities for commission of the Act under substantive law is illegal, unless there is possibility of immediate release of the person from custody in the substantive offence and there are compelling reasons for passing of the order of preventive detention. Such a situation is required to be reflected in the order of detention or the grounds of detention formulated by the detaining authority. The impugned order is, therefore, liable to be quashed on this score alone. 8. Viewed thus, this petition is allowed as it has merit and in the result, the impugned detention order is quashed. The petitioner be set at liberty, if not required in any other case. 9. The impugned order is, therefore, liable to be quashed on this score alone. 8. Viewed thus, this petition is allowed as it has merit and in the result, the impugned detention order is quashed. The petitioner be set at liberty, if not required in any other case. 9. Record of the case be remitted back to the learned counsel for the respondents. 10. Disposed of.