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2020 DIGILAW 59 (JK)

Imtiaz Ahmed v. State Of J&K

2020-02-10

SANJEEV KUMAR

body2020
JUDGMENT 1. Impugned in this petition is an order of detention passed by the Divisional Commissioner, Jammu (hereinafter referred to as the Detaining Authority) vide No. PITNDPS 1 of 2019 dated 12.02.2019 whereby the petitioner Imtiyaz Ahmed (hereinafter referred to as the Detenu) has been put under preventive detention with a view to prevent him from indulging in illicit traffic in narcotic drugs and psychotropic substances. 2. The order of detention has been assailed on several grounds and before I advert to the grounds of challenge urged by the learned counsel for the detenu, it would be profitable to notice the factual antecedents leading to the passing of the detention order and filing of the instant petition. On the dossier submitted by the Senior Superintendent of Police, Rajouri vide its letter dated 30.10.2018, the Detaining Authority swung into action and placed the detenu under detention in terms of impugned order. The grounds of detention served upon the detenu contain the details of the activities of the detenu, which the Detaining Authority has found to be a threat to health and welfare of the people. As per the grounds of detention, in the year 2017, an FIR No. 96 of 2017 under Section 8/20 NDPS Act was registered at Police Station, Surankote District Rajouri and the same was, on investigation challaned in the competent court of law. The detenu was also booked in a complaint under Sections 107/151/110 Cr.PC in Police Station, Thanamandi on 10.02.2018 and this was with regard to his involvement in consumption and supply of banned drugs to the youth of the area. He remained lodged in District Jail, Dhangri by the orders of the Executive Magistrate Ist Class. On 27.08.2018, he was again booked for similar activities. The grounds of detention further reveal that there were some confidential reports with regard to the activities of the detenu and as per the report of the CID Authorities dated 27.10.2018, the detenue was involved in the consumption and supply of drugs and there is reference to another FIR, i.e., FIR No.514 of 2013 registered in Police Station, Thanamandi, District Rajouri under Section 379 RPC , which too upon investigation has been challaned in the competent court of law. The aforesaid FIR pertains to the year 2013. The aforesaid FIR pertains to the year 2013. It is in view of the aforesaid activities of the detenu and his indulgence in the illicit trade of narcotic drugs and psychotropic substances, the Detaining Authority passed an order of detention and put the detenu under preventive detention. 3. The impugned order of detention is assailed by the detenu on several grounds. The ground which was vehemently pressed during the course of the arguments by the learned counsel for the detenu is that the requisite material relied upon by the Detaining Authority to arrive at satisfaction that the activities of the detenu are such as would require measures to prevent him committing such acts, which amount to illicit traffic in narcotic drugs and psychotropic substances, was not supplied and that incapacitated the detenu from making effective representation. That apart, learned counsel contends that the material indicated in the grounds of detention is not relevant for placing the detenu under detention in terms of Section 3 of the J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 . Referring to the grounds of detention, learned counsel for the detenu points out that amongst several complaints and the FIRs, only one FIR, i.e., FIR No.96/2017 pertains to the offences under Sections 8/20 of NDPS Act and, therefore, the involvement of the detenu in the solitary incident cannot be made the basis of Detention Order. 4. The respondents have filed the counter-affidavit and have justified the order of detention on the grounds that the activities, the detenu has been indulging inconsistently are highly prejudicial to the health and welfare of the people and therefore, it was necessary to prevent him from committing such acts. 5. Having heard learned counsel for the parties and perused the record I am of the view that the order of detention passed by the respondent No.2 is not sustainable in law. Without going into the merits of the grounds of detention, it would suffice to notice that apart from the dossier provided by the Senior Superintendent of Police, the Detaining Authority has relied upon the FIR No. 96/2017, FIR No. 214/2013 and two complaints filed before the Executive Magistrate, First Class under Sections 107/151/110 Cr.PC. Without going into the merits of the grounds of detention, it would suffice to notice that apart from the dossier provided by the Senior Superintendent of Police, the Detaining Authority has relied upon the FIR No. 96/2017, FIR No. 214/2013 and two complaints filed before the Executive Magistrate, First Class under Sections 107/151/110 Cr.PC. The Execution Report placed on record by the respondents along with their reply affidavit indicates that only the order of detention (two leaves) and the grounds of detention (two leaves) total (four leaves) have been served upon the detenu. It is, thus, evident that the material strongly relied upon by the Detaining Authority to arrive at subjective satisfaction with regard to the detention of the detenu has not been supplied to the detenu at all. The Detaining Authority has also not shown any awareness as to whether the detenu was under arrest in FIR No.96/2017; applied for bail and whether or not he was released by the competent court of jurisdiction. Mere reference to the FIR and presentation of the challan without further indicating as to whether the detenu is arrested or released in the aforesaid FIR/challan depicts total non-application of mind by the Detaining Authority. The Detaining Authority also does not indicate as to how substantive law of the land has failed to dissuade the detenu from indulging in the illicit trafficking of narcotic drugs and psychotropic substances. The copies of the complaints purportedly filed under Sections 107/151/110 Cr.PC dated 27.08.2018 and 18.09.2018 have also not been provided to the detenu, though the same have been relied upon very heavily by the Detaining Authority to arrive at subjective satisfaction. Thus, as a result of non-application of mind on the part of the Detaining Authority and failure to provide relevant material to the detenu so as to enable him to make effective representation, the order of detention impugned in this petition is vitiated. 6. Accordingly, this petition is allowed. The order of detention impugned in this petition bearing No. PITNDPS 1 of 2019 dated 12.02.2019 passed by Divisional Commissioner, Jammu is quashed. The detenu shall be released forthwith if not required in any other case. 7. Disposed of as above along with connected application(s), if any. 8. Detention record be returned to the learned counsel for the respondents.