HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

Reserved on : 19.03.2024

Pronounced on : 02.04.2024

Sahil Choudhary, age 25 years

S/o Karnail Singh, R/o Village Chak Alawal

Tehsil R.S.Pura, Jammu through his mother Nirmal Devi ...Petitioner(s)

Through:- Mr. Anmol Sharma, Advocate

V/s

Union Territory of Jammu and Kashmir through

1. Divisional Commissioner, Jammu

2. Senior Superintendent of Police, Jammu

3. Incharge Jail, Ambphalla, Jammu

...Respondent(s)

Through:- Mr. Amit Gupta, AAG

Coram: HON’BLE MR. JUSTICE SANJEEV KUMAR , JUDGE

JUDGMENT

1. Impugned in this petition filed by the petitioner through his mother is

an order of detention No.PITNDPS-12 of 2023 dated 02.05.2023

passed by the Divisional Commissioner, Jammu [“the Detaining

Authority”] under Section 3 of the Prevention of Illicit Traffic in

Narcotic Drugs and Psychotropic Substances Act, 1988 [“the Act”],

whereby the petitioner has been placed under preventive detention

HCP No.31/2023

HCP No.31/2023 2

with a view to prevent him from indulging in illicit trafficking in

narcotic drugs and psychotropic substances.

2. The impugned detention is made upon subjective satisfaction arrived

at by the Detaining Authority on the basis of material supplied by the

District Police in the shape of dossier. The petitioner, as is apparent

from the grounds of detention allegedly served upon him, is involved

in three FIRs registered in the year 2022 and 2023 in the Police

Station, Miran Sahib under different Sections of the Narcotic Drugs

and Psychotropic Substances Act, 1985 [“NDPS Act”]. It is on the

basis of these FIRs and some DDRs submitted by the District Police,

the Detaining Authority arrived at its subjective satisfaction that the

repeated involvement of the petitioner in illicit drug trafficking is a

serious threat to the society in general and health and welfare of the

youth of the UT of Jammu & Kashmir and District Jammu, in

particular.

3. The impugned detention order is assailed by the petitioner on

multiple grounds. The grounds of challenge, which were emphasized

by the learned counsel for the petitioner during the course of

arguments, can be summed up in the following manner:-

i) The detention order was passed on 2

nd

May, 2023 but the same

was executed on 23

rd

June, 2023 and, therefore, there has been

inordinate and unexplained delay in execution of the detention

order, more particularly, when the petitioner was already in

judicial custody since 13

th

March, 2023.

HCP No.31/2023 3

ii) The impugned order of detention suffers from total non-

application of mind by the Detaining Authority, in that, the

Detaining Authority has nowhere in the grounds of detention

shown its awareness with regard to the petitioner being

already in judicial custody nor has the Detaining Authority

given any reason or justification necessitating passing of the

detention order while the petitioner was already in custody of

the State.

4. The Detaining Authority has filed counter affidavit wherein the

Detaining Authority while relying upon a judgment of the Supreme

Court in the case of Hardhan Saha v. State of West Bengal, (1975)

3 SCC 198 has submitted that the preventive detention and

prosecution are not synergies and the purpose of two are different.

The power of preventive detention is a preventive measure and is

exercised in reasonable anticipation but it may or may not relate to

an offence.

5. With a view to justify the detention of the petitioner, who, as per the

Detaining Authority, is an incorrigible drug peddler and a serious

threat to the health and welfare of the youth of District Jammu, it is

submitted that the subjective satisfaction was arrived on the basis of

cogent relevant material in relation to the activities of the petitioner

provided by the district police. The averments made in the petition

with regard to the non-compliance of the mandatory requirements of

HCP No.31/2023 4

law have been sought to be met by placing reliance on the record of

detention.

6. Having heard learned counsel for the parties and perused the material

on record, I am of the considered opinion that the impugned

detention order does not survive for more than one reason.

7. Indisputably, there is enough material on record to show that from

the year 2022 the petitioner has been consistently indulging in illicit

drug trafficking of Narcotics and Psychotropic Substances and has

been booked thrice in various offences under the NDPS Act. With

reference to an occurrence dated 08.10.2022, about 4.5 gms of heroin

like substance was recovered from the petitioner and FIR

No.127/2022 was registered in Police Station, Miran Sahib. The

mater was investigated and, accordingly, challan against the

petitioner was presented before the competent Court of jurisdiction.

He, however, was bailed out by the Court in the above said case. The

petitioner was again caught on 28

th

February, 2023 by the policy

party of Police Station, Miran Sahib and heroin like substance

weighing 200 gms was recovered from the possession of the

petitioner and his two other associates. The petitioner has succeeded

in persuading the Court to grant him bail in the aforesaid case also.

8. There is another FIR No.60/2023 registered against the petitioner

and that is with respect to recovery of 35 to 45 gms of heroin like

substance by the police party of Police Station, Miran Sahib on

HCP No.31/2023 5

13.03.2023 during checking at naka laid at Kotli Mian Fateh. It was

reported by the Senior Superintendent of Police, Jammu that the

petitioner, who was earlier arrested in FIR No.53/2023 and was later

released by the Court, was again taken into custody in FIR

No.60/2023 dated 30.03.2023 and the petitioner was in police

custody.

9. Interestingly, the Detaining Authority has missed to take note of this

fact and has, in the grounds of detention, shown its complete

unawareness that the petitioner at the time of passing the order of

detention, was already in police custody. The Detaining Authority

has instead indicated in the grounds of detention that the petitioner is

out on bail and is still indulging in sale and purchase as well as

transportation of illicit drugs. The Detaining Authority does not

seem to have gone through the material provided by the Senior

Superintendent of Police, Jammu carefully.

10. The fact that the petitioner was in police custody on the date of

passing of the detention order has either been overlooked by the

Detaining Authority or has escaped its attention at the time of

arriving at subjective satisfaction with regard to the necessity of

placing the petitioner in preventive detention. Both ways, it is

reflective of total non-application of mind by the Detaining

Authority.

HCP No.31/2023 6

11. Non-consideration of the relevant material vitiates subjective

satisfaction, which is sine qua non for placing an individual under

preventive detention under the Act. Not only the Detaining Authority

was required under law to show its awareness about the petitioner

being in custody of State but it was equally incumbent upon it to

disclose cogent reasons and provide justification for placing the

petitioner under preventing detention.

12. From a reading of the grounds of detention and the supportive

counter affidavit filed, it is evident that neither the Detaining

Authority was aware that the petitioner was already in custody of the

State nor has it indicated any reasons as to why the detention of the

petitioner was necessitated despite the fact that he was already in the

custody of the State. It is nowhere indicated by the Detaining

Authority that the petitioner was likely to be released on bail and

there was apprehension that upon such release, he would again

indulge in the drug trafficking.

13. As a matter of fact, the detention order has preceded on the premise

that the petitioner is already at large after obtaining bail in the

matters registered against him and while being at large is again

indulging in the similar activities, which, however, is factually

incorrect.

14. Viewed thus, this Court is of the considered opinion that the very

sine qua non for putting a citizen under preventive detention that is

HCP No.31/2023 7

subjective satisfaction of the Detaining Authority is vitiated by total

non-application of mind. In Sayed Abul Ala vs Union Of India &

Ors, (2007) 15 SCC 208 Hon’ble Supreme Court in paragraph

No.25 has very succinctly stated the legal position as under:-

“25. No doubt antecedents of the detenu would be a relevant factor but

the same by itself may not be sufficient to press an order of detention in

as much as the principles which govern the field so as to enable the

court to arrive at a decision that the order of detention can be validly

passed despite the detenu being in custody are:

(1) if the authority passing the order is aware of the fact that he

is actually in custody;

(2) if he had a reason to believe on the basis of reliable material

placed before him

(a) that there is a real possibility of his being released

on bail, and

(b) that on being released, he would in all probability

indulge in prejudicial activities; and

(3) it is felt essential to detain him to prevent him from so

doing.”

15. Equally tenable is the ground of challenge urged by the learned

counsel for the petitioner that in the given facts and circumstances,

delay in execution of the detention order is also fatal. Admittedly,

the order of detention was passed on 2

nd

May, 2023. Although, delay

in execution of the detention order which is slightly less than two

months may not be fatal in all circumstances, yet in the instant case

where the petitioner was already in the custody of police, such delay,

in the absence of any cogent explanation, would vitiate the order of

detention. Hon’ble Supreme Court in the case of Sushanta Kumar

Banik v. State of Tripura and others, 2022 Live law SC 813 has

observed as follows:-

HCP No.31/2023 8

“ It is manifestly clear from a conspectus of the above decisions of this Court,

that the underlying principle is that if there is unreasonable delay between the

date of the order of detention & actual arrest of the detenu and in the same

manner from the date of the proposal and passing of the order of detention,

such delay unless satisfactorily explained throws a considerable doubt on the

genuineness of the requisite subjective satisfaction of the detaining authority in

passing the detention order and consequently renders the detention order bad

and invalid because the “live and proximate link” between the grounds of

detention and the purpose of detention is snapped in arresting the detenu. A

question whether the delay is unreasonable and stands unexplained depends on

the facts and circumstances of each case.”

16. For the foregoing reasons, this Court is inclined to accept the

petition and quash the impugned order of detention.

Ordered accordingly.

The respondents shall release the petitioner from preventive

custody forthwith provided he is not required in any other case.

Record be returned back to the learned counsel for the

respondents.

(Sanjeev Kumar)

Judge

Srinagar.

02.04.2024

Vinod.

Whether the order is reportable: Yes