HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

HCP No. 64/2024

Reserved on: 26.09.2024

Pronounced on: 14.10.2024

Abdul Habib …. Petitioner/Appellant(s)

Through:- Mr. Idrees Saleem Dar, Advocate

V/s

UT of J&K and others …..Respondent(s)

Through:- Mr. Amit Gupta, AAG

CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

JUDGMENT

01. The petitioner has challenged the legality, propriety and correctness of

impugned detention order No. PITNDPS 23 of 2024 dated 19.03.2024,

passed by the Divisional Commissioner, Jammu under Section 3(1) of the

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances

Act, 1998 read with SRO 247 dated 27.07.1988. The order of detention has

been challenged by the detenue through his brother-Niku.

02. The Divisional Commissioner, Jammu, has detained Abdul Habib @

Bheem S/o Maon Din R/o Ladana, Tehsil Ramnagar, District Udhampur,

A/P Badheri, Nanak Chak, Tehsil and District Samba, under Section 3(1) of

the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic

Substances Act, 1988 read with SRO 247 dated 27.07.1988 to prevent him

from committing any act within the meaning of illicit trafficking.

03. The detention of the detenue has been ordered on the ground of his

repeated and continuous involvement in criminal as well sale and purchase of

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Narcotic Drugs and Psychotropic Substance which poses a serious threat to

the health and welfare of the people.

04. As per the dossier of the Sr. Superintendent of Police, Samba, the

detenue was involved in two FIRs, i.e., FIR No. 123/2022 registered u/s

8/21/22 NDPS Act at Police Station, Samba, and FIR No. 17/2024 registered

u/s 8/21/22/25/27(a)/29 of NDPS Act and u/s 3/25 of Arms Act registered at

Police Station, Samba. The Detaining Authority, after considering the dossier

of activities submitted by the Police, has arrived at its subjective satisfaction

to prevent the detenue from further committing any offences and accordingly

issued the order of detention.

05. The detenue has assailed the impugned order of detention on the

ground that; (a) the Detaining Authority relied on two FIRs (No. 123/2022

and No. 17/2024) while passing the order of detention but bail in both cases

has been granted to the detenue and there were no compelling reasons

recorded for his detention; (b) the detention order was based solely on the

dossier prepared by the Superintendent of Police, Jammu, without any

application of mind by the Detaining Authority; (c) the detention order was

communicated to the detenue within the prescribed time, violating Section 3

of the PITNDPS Act, and the Detaining Authority failed to refer the

detention to the Advisory Board within the mandatory five-week period,

making the detention order unsustainable; (d) the allegations against the

detenue are of a criminal nature and the Detaining Authority has failed to

show how the ordinary law not sufficient to address the issues; (e) the

Detaining Authority did not supply the relevant material (FIRs, witness

statements, FSL report) to the detenue, infringing upon his right to make a

representation; (f) the detenue, having studied only up to the 5th standard,

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was provided with the grounds of detention in a highly technical language

that was beyond his comprehension. The Detaining Authority failed to

provide the grounds of detention in the language the detenue understands,

thus, violating the constitutional as well as procedural safeguards provided to

him; (g) the Detaining Authority did not ensure that the grounds of detention

were communicated effectively to the detenue in a language he understood,

violating both constitutional safeguards under Article 22(5) and the

procedural requirements under the PITNDPS Act.

06. Mr. Amit Gupta, learned AAG, has filed the counter affidavit as well

as produced the relevant record.

07. The respondents submit that the detenue has been detained on the

dossier supplied by the SSP, Samba, and the Detaining Authority, after

carefully examining the same, has arrived at a subjective satisfaction to

detain the detenue for his repeated and continuous involvement in drugs

trafficking, which affect the health and welfare of the people. All the

statutory requirements and constitutional guarantees have been fulfilled and

complied with by the Detaining Authority. The impugned order issued is

legal and valid and the learned counsel for the respondents has further

submitted that the grounds urged in this petition by the detenue are

misconceived and untenable being without any merit.

08. Heard learned counsel for the parties at length and also perused the

record.

09. The right of personal liberty is most precious right, guaranteed under

the Constitution. It has been held to be transcendental, inalienable and

available to a person independent of the Constitution. A person is not to be

deprived of his personal liberty, except in accordance with procedures

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established under law and the procedure as laid down in “Maneka Gandhi

vs. Union of India”, 1978 AIR SC 597, is to be just and fair. The personal

liberty may be curtailed, where a person faces a criminal charge or is

convicted of an offence and sentenced to imprisonment.

10. Article 22(5) of the Constitution of India, provided for detention of a

person without a formal charge and trial and without such person held guilty

of an offence and sentenced to imprisonment by a competent court. Its aim

and object are to save society from activities that are likely to deprive a large

number of people of their right to life and personal liberty.

11. It is well settled that 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.

12. 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

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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.”

13. 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.…………”

14. 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…”

15. Perusal of the record also reveals that the detenue 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 detenue was

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provided all the material (28 leaves) which reveals that the detenue was

provided with all the material and the same was explained to him in English,

Hindi, Urdu and Dogri languages, which he understood. The detenue has

signed the receipt of detention in English which reveals that the detenue has

sufficient knowledge of the same.

16. The Detaining Authority has observed that the detenue 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. 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 detenue.

17. It was next argued by the learned counsel for the detenue that the

Detaining Authority has detained the detenue only on the basis of two

FIRs. These two incidents are sufficient for the Detaining Authority to

initiate proceedings of preventive detention if the Detaining Authority

arrives at a subjective satisfaction that the detenue was indulged in

narcotics drugs and psychotropic substances. The detention is preventive

and precautionary in nature and is not punitive. It is to prevent the

individual from carrying out acts which are in any manner prejudicial to

the health and welfare of the people. The Detaining Authority was

satisfied that there was every apprehension that the detenue would indulge

in illicit trafficking of narcotics drugs and psychotropic substances in case

he is allowed to remain free and the satisfaction for detention is the

prerogative of the Detaining Authority, therefore, the Detaining Authority

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has rightly exercised the same. The Detaining Authority has also shown its

awareness to the bail granted to the detenue.

18. The detention order does not suffer from any legal infirmity and

grounds of detention are free from any ambiguity. The detenue was duly

informed what weighed with the Detaining Authority while passing the order

of detention. The Detaining Authority arrived at a subjective satisfaction that

detenue was required to be placed under preventive detention under the

PITDPS Act, 1998.

19. The Detaining Authority thus arrived at its subjective satisfaction

regarding its apprehension that the detenue might repeat and continuously

engage in illicit trafficking of narcotic drugs and psychotropic substances.

This satisfaction for detention is not subject to judicial review. The detenue

was provided all the material relied upon by the Detaining Authority

consisting of 28 leaves. The same has also been explained to him in the

language he understands.

20. In view of the aforesaid, none of the constitutional or statutory

grounds available to the detenue have been violated and there is no merit in

this petition and the same is, accordingly, dismissed.

21. Detention record be returned to the learned counsel for the respondents

by the Registry forthwith.

(Sindhu Sharma)

Judge

Srinagar:

14.10.2024

Michal Sharma/PS

Whether approved for reporting : Yes