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2021 DIGILAW 216 (JK)

Rayees Ahmad Hakak v. UT of J&K

2021-05-01

SANJEEVKUMAR

body2021
JUDGMENT : SANJEEV KUMAR, J. 1. This petition for Habeas Corpus is filed by the petitioner through his father, Fayaz Ahmad Hakak, seeking quashment of detention order bearing No. DIVCOM-“K”133/2020 dated 19.05.2020 (the impugned order) issued by Divisional Commissioner, Kashmir (the detaining authority), whereby petitioner has been put under preventive detention with a view to preventing him from committing any act within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act and for maintenance of public order. 2. Before adverting to the grounds of challenge taken by the petitioner to assail the impugned order, it would be appropriate to briefly state few background facts. 3. On the basis of communication of Senior Superintendent of Police, Srinagar, issued vide his No. LGL/Det-3222/20/5186-89 dated 28.04.2020, whereby some material including dossier and other connected documents in respect of the petitioner was submitted to the detaining authority, the detaining authority arrived at satisfaction that with a view to preventing the petitioner from committing any act within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act and for maintenance of public order, it was necessary to detain him and, accordingly, the impugned order of detention was passed. The grounds of detention, claimed to have been served upon the petitioner, indicate activities of the petitioners in some detail. As per the grounds of detention, it is alleged that the petitioner is involved in illicit trafficking of drugs and psychotropic substances. In the year 2018, he was arrested by police during a Naka Checking and narcotic drugs were recovered which, it is alleged, he was carrying to sell among youth of area especially school going boys. Accordingly, a case FIR No. 113/2018 under Section 20/22 of NDPS Act was registered against him in Police Station, Nigeen, and later on petitioner was released from custody. It is also claimed that as per the reports received from field agencies, the petitioner is clandestinely dealing in illegal business of narcotics and in order to carry out this illegal trade, he is exploiting the immature minds of younger generation by making them dependent on drugs and is hell-bent to spoil the life and career of younger generation by selling drugs to them. 4. 4. It is on the basis of aforesaid activities of the petitioner and his involvement in the aforesaid FIR, the detaining authority has derived satisfaction that it imperative to detain the petitioner under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. 5. The petitioner has challenged the impugned order of detention on several grounds. The grounds of challenge which were pressed during the course of arguments by learned counsel appearing for the petitioner are as under: (i) That the subjective satisfaction derived by the detaining authority is vitiated for the reason that the detaining authority has clubbed two different types of activities allegedly attributable to the petitioner and it is not clear as to whether the impugned order has been issued to prevent the petitioner from indulging in illicit trafficking of drugs and psychotropic substances or it is for maintenance of public order. (ii) That at the time of passing of the order of detention, the detenue was already in custody of State and had not even applied for bail and, therefore, it was necessary for the detaining authority to indicate the compelling circumstances for passing the impugned detention order. 6. On being put on notice, the detaining authority has filed a detailed reply affidavit to justify the impugned order of detention. It is submitted that the order of detention does not suffer from any malice or legal infirmity, inasmuch as safeguards provided under the Constitution as also the rights of the detenue have been adhered to while ordering his detention. It is also submitted that the impugned order of detention is based upon subjective satisfaction of the detaining authority and the reasons that prevailed with it cannot be gone into by the Court. Placing strong reliance on the judgment of the Supreme Court in the case of Hardhan Saha vs. State of West Bengal, (1975) 3 SCC 198 , it is submitted that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal and that the pendency of the prosecution is no bar to pass an order of preventive detention. 7. Having heard learned counsel for the parties and perused the record, I am of the considered view that the order of detention does not survive the judicial scrutiny for more than one reason. 7. Having heard learned counsel for the parties and perused the record, I am of the considered view that the order of detention does not survive the judicial scrutiny for more than one reason. From the grounds of detention, it transpires that the opinion of the detaining authority clearly oscillates between the activities of the detenue relating to illicit trafficking of drugs and those having potential of disturbing public order. FIR No. 113/2018 and FIR No. 02/2019, which find reference in the grounds of detention, pertain to the offences under NDPS Act and, therefore, if the petitioner was to be detained with a view to preventing him from indulging in illicit trafficking of drugs, there is a separate legislation in place i.e. the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, which provides for preventive detention in such matters. Admittedly, the detaining authority has not decided to proceed under the aforesaid Act and may be it did not find sufficient material to derive subjective satisfaction that the activities of the petitioner are such that unless he is placed under preventive detention, it would not be possible to deter him from indulging in the activities of illicit drug trafficking. 8. In the grounds of detention it is no where mentioned as to whether in FIR No. 02/2019, the petitioner was arrested or not. However, in the counter affidavit, the detaining authority has stated that on 13.01.2019, the petitioner was again arrested when he was found travelling along with psychotropic substance and contraband material i.e. 500 “Rest Cofe” bottles in Honda city vehicle bearing No. WB-02W-8484 and, accordingly, FIR No. 02/2019 under Section 8/22 NDPS Act at Police Station, Nigeen, was registered. From the aforesaid factual narration of the detaining authority in its reply affidavit, it clearly transpires that at the time detention order was passed, the detenue was already in custody of respondents in FIR No. 02/2019. The detaining authority has not indicated any compelling reasons to justify the preventive detention of the detenue when he was already in custody of the State for commission of substantive offences under NDPS Act and had been formally booked in FIR No. 02/2019. It was thus incumbent upon the detaining authority to disclose the compelling reasons for resorting to such action. It was thus incumbent upon the detaining authority to disclose the compelling reasons for resorting to such action. If the idea of issuing the detention order was to prevent the detenue from indulging in illegal activities as aforesaid, that objective stood already achieved with the arrest of detenue in connection with commission of substantive offences for which FIRs (supra) were registered in the year 2018 and 2019. In these circumstances, the detaining authority could not have absolved itself of the responsibility to, at least, indicate the compelling circumstances for taking such decision. In that view of the matter, the detention of the detenue, when he was already in police custody, cannot be said to have been made because of any undisclosed compelling reasons and, therefore, cannot be justified in view of the law laid down by the Supreme Court in Surya Prakash Sharma vs. State of U.P. and Others, 1994 Supp. (3) SCC 195, wherein Supreme Court while dealing with a similar question held thus: “(5) The question as to whether and in what circumstances an order for preventive detention can be passed against a person who is already in custody has had been engaging the attention of this court since it state first came up for consideration before a Constitution Bench in Rameshwar Shaw vs. District Magistrate Burdwan to eschew prolixity we refrain from detailing all those cases accept that of Dharmendra Sugan Chand Chelawat vs. Union of India wherein a three judge Bench after considering all the earlier relevant decisions including Rameshwar Shaw answered the question in the following words: “The decisions referred to above lead to the conclusion that an order for detection 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 detailing authority was aware of the fact that the detenue is already in detention and (ii) there were compelling reasons justifying such detention despite the fact that the detenue is already in detention. The expression compelling reasons in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future and (b) taking into account the nature of the antecedent activities of the detenue, 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.” (6) When the above principles are applied to the facts of the instant case, there is no escape from the conclusion that the impugned order cannot be sustained. Though the grounds of detention indicate the detaining authorities awareness of the fact that the detenu was in judicial custody at the time of making the order of detention, the detaining authority has not brought on record any cogent material nor furnished any cogent ground in support of the averment made in the grounds of detention that if the aforesaid Surya Prakash Sharma is released on bail “he may again indulge in serious offences causing threat to public order.” (Emphasis supplied) To put it differently, the satisfaction of the detaining authority that the detenu might indulge in serious offences causing threat to public order, solely on the basis of a solitary murder, cannot be said to be proper and justified. (7) On the conclusions as above we quash the order of detention.” 9. For the foregoing reason, I find substance in this petition and the same is, accordingly, is allowed. The impugned order of detention is quashed. Direction is issued to the respondents to release the detenue from the preventive custody forthwith, provided he is not required in connection with any other case. 10. The detention record be returned back to the learned counsel for the respondents.