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2024 DIGILAW 155 (JK)

Vikram Singh v. UT of J&K

2024-04-02

SINDHU SHARMA

body2024
JUDGMENT : 1. The challenge in this petition pertains to detention order No. PITNDPS 36 of 2023, dated 14.09.2023, issued by the Divisional Commissioner, Jammu. The detenu-Vikram Singh, S/o Hoshiyar Singh, R/o Lehar Sungal, Tehsil Akhnoor, District Jammu, was detained by the Detaining Authority on the ground that he is engaged in repeated illicit trafficking of Narcotic Drugs and Psychotropic Substances which poses a serious threat to the health and welfare of the people of Union Territory of J&K at large and with a view to prevent him from committing any act under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances (PITNDPS) Act, the detenu was detained under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, vide order dated 14.09.2023. This order of detention has been assailed by the detenu through his wife-Nekha Devi. 2. The order of detention has been assailed by the detenu on the grounds that; (i) the order of detention has been passed without any application of mind on a mere apprehension of a serious threat to the health and welfare of people and the Detaining Authority has not arrived at any subjective satisfaction before passing the order of detention; (ii) the detenu was not informed about his right to make a representation against the detention order which is in violation of his right guaranteed under Article 22 of the Constitution; (iii) the grounds of detention have not been read over and explained to the detenu in the language he understands; (iv) the order of detention has been passed without any application of mind on irrelative and vague grounds; (v) all the material relied upon by the Detaining Authority has not been provided to the detenu; (vi) the order of detention is punitive in nature and grounds of detention are vague and stale, thus, the subjective satisfaction of the Detaining Authority is vitiated. 3. The respondents have filed their counter affidavit and produced the record of detention. 4. In the counter affidavit filed by the respondents, it is submitted that the detenu has been detained under the PITNDPS Act, 1988, after the Detaining Authority carefully examined the dossier submitted by the SSP, Jammu and arrived at a subjective satisfaction regarding the detention of the detenu. 4. In the counter affidavit filed by the respondents, it is submitted that the detenu has been detained under the PITNDPS Act, 1988, after the Detaining Authority carefully examined the dossier submitted by the SSP, Jammu and arrived at a subjective satisfaction regarding the detention of the detenu. The detenu was undeterred by the ordinary law, as such, he was placed under the preventive detention in order to prevent him from committing any acts of illicit trafficking of Narcotic Drugs and Psychotropic Substances. It is further submitted that none of the constitutional and statutory rights of the detenu have been infringed or violated by the answering respondents. The detenu was supplied with all the material relied upon by the Detaining Authority while passing the order of detention and the same read over and explained to him in the language he understands. 5. The detenu was repeatedly indulging in illicit trafficking of Narcotic Drugs and Psychotropic Substances and a consequence thereof the ordinary law was unable to prevent him from committing these acts, which has resulted in the Detaining Authority arriving at its subjective satisfaction that the detenu poses a serious threat to the health and welfare of the people, as such, he was detained under the preventive law. It is further submitted that the subjective satisfaction arrived at by the Detaining Authority cannot be subjected to judicial review by this Court. All the procedural safeguards and constitutional guarantees were duly complied with by the Detaining Authority. The grounds of detention, order of detention as well as entire material relied upon by the Detaining Authority has been provided to the detenu and he was also informed of his right to make a representation against the order of detention. 6. Heard learned counsel for the parties and perused the record also. 7. The Detaining Authority, in the grounds of detention, has stated that the detenu is an active drug peddler involved in possession and transportation of narcotic drugs and psychotropic substances which poses a serious threat to the health and welfare of the people of Union Territory of Jammu and Kashmir. It is further stated that there is likelihood that on being released on bail, he will again engage in the illicit trafficking of narcotic drugs and psychotropic substances. 8. It is further stated that there is likelihood that on being released on bail, he will again engage in the illicit trafficking of narcotic drugs and psychotropic substances. 8. Thus, the contention of the detenu that the respondents have not arrived at a subjective satisfaction before passing the order of detention is without any basis in view of the fact that the Detaining Authority was aware of the fact that the detenu, after being released on bail, is likely to indulge in illicit trafficking of narcotic drugs and psychotropic substances, which would pose a serious threat to the health and welfare of the people, especially the younger generation. In order to prevent him from committing any acts of illicit trafficking and also to protect the younger generation from use of drugs, it was necessary to detain the detenu. 01. It was next argued that the order of detention is punitive in nature. The purpose of the preventive detention by detaining of a person is not to punish him for something he has done but to prevent him from doing a particular act which is prejudicial either to the security of the State or to the maintenance of the public order. In “Haradhan Saha V. State of West Bengal”, (1975) 3 SCC 198 , Hon’ble the Supreme Court has held that there is no parallel between prosecution in a Court of law and a detention order under the Public Safety Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in the Act. The relevant part of the judgment is reproduced as under:- “The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The, basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent.” 02. In Khudiram Das V. State of West Bengal and others, (1975) 2 SCR 832 , It was held that:- .“………..The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof.…………” 03. Similarly, in Secretary to Government, Public (Law and order) and another vs. Nabila and another, (2015) 12 SCC 127 , it has been held that one act may not be sufficient to form the requisite satisfaction for detaining him. Relevant portion of the judgment is as under: “Indisputably, the object of law of preventive detention is not punitive, but only preventive. In case of preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability and there is no criminal conviction which can only be warranted by legal evidence…” 9. It is further submitted that the grounds of detention are vague and non-existent. The grounds of detention are clear and cogent in every manner. The detenu has been provided all the material relied upon by the detaining authority while passing the order of detention. The receipt of detention reveals that the detenu was provided the copy of notice, order of detention, grounds of detention along with dossier consisting of 44 leaves, which reveals that the detenue was provided with all the material. The detenu has been provided all the material relied upon by the detaining authority while passing the order of detention. The receipt of detention reveals that the detenu was provided the copy of notice, order of detention, grounds of detention along with dossier consisting of 44 leaves, which reveals that the detenue was provided with all the material. The execution report reveals that the detenu has been explained the grounds of detention in the Hindi and Dogri languages, which he fully understands. The detenue, as per the submission of the learned counsel for the detenu, is a 12th Pass person, therefore, he has sufficient knowledge of reading and writing English language. He has also signed the receipt of detention in English which reveals that the detenue has sufficient knowledge of the same. Therefore, the submission of learned counsel for the detenu that he has not understood the grounds of detention sufficiently to make a representation is not borne out from the record. 10. It appears from the record that the detenu has not moved a representation before the authority, therefore, this submission could not be considered. The Detaining Authority has observed that the detenu is continuously engaging in illicit trafficking in narcotic drugs and psychotropic substances which poses a serious threat to the health and welfare of the people and the young generation is affected by it. The Detaining Authority, after recording its subjective satisfaction, has passed the impugned order of detention. 11. The provisions, as contained in NDPS Act, state that if the detaining authority is satisfied to prevent any person from indulging in illicit trafficking in narcotic drugs and psychotropic substances, it would make an order directing that person to be detained. The detaining authority was aware that detenue was engaged in illicit trafficking of drugs and these acts were against the general public, therefore, making it necessary to detain the detenu. 12. In view of the aforesaid, I do not find any ground to interfere in the impugned order of detention, thus, there is no merit in this petition and the same is, accordingly, dismissed. 13. Let the detention record be returned to the learned counsel for the respondents by the Registry forthwith.