Jammu & Kashmir High Court
Reserved On: 07.08.2025 vs Union Territory Of J&K on 19 August, 2025
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Sr. No.99
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
HCP No. 03/2025
Reserved on: 07.08.2025
Pronounced on: 19 .08.2025
Mohd. Shakoor, S/O Mohd Bashir .....Petitioner(s)
R/O Dhanidhar
Tehsil & District Rajouri
Through wife Shabnum Kouser
Through :- Mr. Idrees Saleem Dar, Advocate.
v/s
1. Union Territory of J&K .....Respondent(s)
Through Financial Commissioner
(ACS) to Govt., Home Department,
Civil Secretariat, Jammu/Srinagar.
2. Divisional Commissioner, Jammu.
3. Superintendent of Police, Rajouri.
4. Superintendent, Central Jail, Jammu
Through :- Mrs. Monika Kohli, Sr. AAG
CORAM: HON'BLE MR. JUSTICE M.A.CHOWDHARY, JUDGE
JUDGMENT
1. Divisional Commissioner, Jammu (hereinafter called ‘Detaining
Authority’) in exercise of powers under Section 3 of the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substance Act 1988 (PIT NDPS
Act) r/w SRO 247 of 1998 dated 27.07.1998, passed the detention Order No.
PITNDPS 39 of 2024 dated 06.11.2024 (for short ‘impugned order’), in terms
whereof the petitioner namely Mohd Shakoor S/O Mohd Bashir R/O Dhanidhar,
Tehsil & District Rajouri (for short ‘detenue’), has been detained.
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2. The impugned detention order has been challenged through the
medium of the instant petition, being in breach of the provisions of Article 22(5)
of the Constitution of India read with provisions of PIT NDPS Act, asserting
therein that the detention order so passed against the petitioner is illegal and
arbitrary as the translated version of documents was not communicated to the
detenue, which vitiates the impugned detention order; that the representation
filed on behalf of the detenue on 09.12.2024 was not considered; that in all the 5
FIRs lodged against the detenue, he is on bail in all the cases; that earlier also,
detenue was detained under PIT NDPS Act on the basis of 9 FIRs, and this time,
earlier 4 FIRs are again made basis for passing the impugned detention order;
that the detaining authority has not mentioned a word in the detention order with
regard to the satisfaction drawn by it as to how it has come to the conclusion of
passing the detention order.
3. Furthermore, it is stated that the petitioner has not committed any
offence nor he is involved in the commission of any offence under the NDPS
Act which pose a serious threat to the health and welfare of the people, but the
detaining authority without the application of mind and without considering the
material on record had issued and passed the impugned detention order, which is
illegal, unjustified, unwarranted under law and, as such, the same is liable to be
quashed. It is also submitted that the order of detention and the connected
documents annexed with the petition clearly show violation of right of the
detenue guaranteed in terms of Article 22(5) of the Constitution of India and the
provisions of PIT NDPS Act.
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4. Respondents, in their counter affidavit, have stated that the detenue is
a habitual drug peddler involved in possession and transportation of Narcotic
Drugs and Psychotropic Substances; that the detenue was ordered to be detained
under the provisions of Prevention of Illicit Traffic in Narcotics Drugs and
Psychotropic Substances Act, 1988 and that, had he been let free, there would
have been every likelihood of his re-indulging in criminal activities. It is also
being stated that the petitioner has filed representation to the Principal Secretary,
Home Department for revocation of detention order and the same was under
active consideration of the Government; that on consideration of dossier
submitted by the SSP, Rajouri, the respondent no.2 carefully examined the
dossier and the relevant records attached with it, as a result, it was found
imperative to detain the detenue under the relevant provisions of PIT NDPS Act;
that the petitioner after getting bail was again involved in the illicit trafficking of
narcotic drugs and was posing grave threat to the public order as well as to the
health and welfare of the people; that the ordinary law has failed to deter as is
evident from the conduct of the detenue.
5. Additionally, the respondents pleaded that the detenue was supplied
all the relevant documents along with detention order, grounds of detention all
legible copies (Total 144 leaves) and the executing officer explained the detenue
in the language i.e. Urdu/Hindi which he understands and also informed the
detenue about his right to make representation before the Government as well as
detaining authority against the detention order; that all the requirements as
contemplated under the Act have been complied with and no error of law or
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procedure, which would invalidate the detention, is committed by the Detaining
Authority; that the detention is well founded and is in conformity with the
principles as enshrined under Article 22(5) of the Constitution of India read with
the provisions of the PIT NDPS Act. Lastly, it is prayed that the writ petition be
dismissed and the detention order be upheld.
6. Learned counsel for the detenue, while being heard, making reference
to the grounds of detention, would argue that on a cursory look on the same it is
manifest that same are vague, besides replica of the dossier. It is also submitted
that the Detaining Authority, on the basis of dossier submitted by Senior
Superintendent of Police, Rajouri, without application of mind and without
evaluating the allegations made against the detenue in the said dossier,
proceeded to pass impugned detention order, whereby the detenue has been
detained and directed to be lodged at District Jail, Rajouri. It is also argued that
the Detaining Authority has not mentioned in the detention order that the
detenue has right to make representation against the order of detention and has
supplied the copies of the documents/FIRs and material relied upon by the
Detaining Authority, which are neither legible nor readable documents, so that
the petitioner who is an illiterate person was prevented in making effective and
meaningful representation against the detention order to the government, as
such, the detention order is liable to be quashed.
7. Learned counsel for the respondents, ex adverso, submits that the
record reveals that there is no vagueness in the grounds of detention; that the
procedural safeguards prescribed under Act and the rights guaranteed to the
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detenue under the Constitution have been strictly followed in the instant case.
The detenue has been furnished all the material, as was required, and was also
made aware in Urdu/Hindi, of his right to make representation to the detaining
authority as well as government, against his detention. It is also argued that
earlier also, the petitioner was taken into preventive detention vide Order
No.DMR/INDEX-02 of 2022 dated 09.12.2022 passed by District Magistrate
Rajouri on the basis of nine cases/FIRs registered at Police Stations of Rajouri,
Manjakote and Nowabad, Jammu, however, after his release, detenue re-
indulged in illicit trafficking of drugs and subsequently two more cases vide FIR
No.49/2021 U/S 8(A)/21/22 NDPS at P/S Rajouri and FIR No.44/2024 U/S
8/21/22 NDPS at P/S Thanamandi came to be registered against the detenue,
which compelled the detaining authority to again order his preventive detention..
8. Heard learned counsel for both the sides at length, perused the
detention record and considered the matter.
9. 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. A person is not to be deprived of his/her personal liberty except in
accordance with procedures established under law and the procedure as laid
down in Maneka Gandhi v. 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 has been convicted of an offence and sentenced to imprisonment.
Where a person is facing trial on a criminal charge and is temporarily deprived
of his/her personal liberty because of the criminal charge framed against
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him/her, has an opportunity to defend himself/herself and to be acquitted of the
charges in case the prosecution fails to bring home his/her guilt. Where such a
person is convicted of the offence, he/she still has the satisfaction of having been
given adequate opportunity to contest the charge and also adduce evidence in
his/her defence.
10. Nevertheless, framers of the Constitution have, by incorporating
Article 22 (5) in the Constitution of India, left room for detention of a person
without a formal charge and trial and without such person having been held
guilty of an offence and sentenced to imprisonment by a competent court. The
object is to save the society from activities that are likely to deprive a large
number of people of their right to life and personal liberty. In such a case, it
would be dangerous for the people at large, to wait and watch as, by the time
ordinary law is set into motion, the person having dangerous designs, would
execute his/her plans, exposing the general public to risk and cause colossal
damage to life and property. It is, therefore, necessary to take preventive
measures and prevent the person bent upon perpetrating mischief from
translating his/her ideas into action. Article 22(5) Constitution of India therefore
leaves scope for enactment of preventive detention law.
11. The Hon’ble Apex Court in the judgment rendered in the case of
“Hardhan Saha v. State of W.B” [(1975) 3 SCC 198], has succinctly pointed
out difference between preventive and punitive detention in the following
words:
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“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. 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.”
12. The conceptual framework of preventive detention has been reiterated
in “Khudiram Das v. State of W.B“, [(1975) 2 SCR 832], as under:
“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.”
13. In “Naresh Kumar Goyal v. Union of India“, [(2005) 8 SCC 276],
the Court observed:
“It is trite law that an order of detention is not a curative or
reformative or punitive action, but a preventive action, avowed object
of which being to prevent the anti-social and subversive elements from
imperiling the welfare of the country or the security of the nation or
from disturbing the public tranquility or from indulging in smuggling
activities or from engaging in illicit traffic in narcotic drugs and
psychotropic substances etc. Preventive detention is devised to afford
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protection to society. The authorities on the subject have consistently
taken the view that preventive detention is devised to afford protection
to society. The object is not to punish a man for having done
something but to intercept before he does it, and to prevent him from
doing so.”
14. The detention record, as produced, reveals that the detenue was
involved in following cases registered at different police stations vide:-
(i) FIR No. 320/2012 U/S 8/20 NDPS Act of P/S Rajouri.
(ii) FIR No. 83/2017 U/S 8/21/22/27/29 NDPS Act of P/S Manjakote.
(iii) FIR No. 440/2018 U/S 8/20/21/22 NDPS Act of P/S Rajouri.
(iv) FIR No. 49/2021 U/S 8(A)/21/22 NDPS Act of P/S Rajouri.
(v) FIR No. 44/2024 U/S 8/21/22 NDPS Act of P/S Thanamandi.
Involvement of the detenue in the aforementioned cases appears to have heavily
weighed with the detaining authority while passing detention order. Detention
record would further show that detenue was arrested in pursuance of these FIRs
but was granted bail by the court in all the cases.
15. Perusal of detention record would further reveal that detenue, on
earlier occasion also, was taken into preventive detention vide Order
No.DMR/INDEX-02 dated 09.12.2022 passed by District Magistrate, Rajouri,
however, after his release, he was again found involved in another case
registered vide FIR No.44/2024 U/S 8/21/22 NDPS at P/S Thanamandi came to
be registered against the detenue, which shows that the detenue is a habitual
recidivist.
16. The detenue, at the time of execution of detention, was provided copy
of the detention order (01 leaf), copy of the grounds of detention (04 leaves),
Corrigendum (01 leaf), Police Dossier (04 leaves), copies of FIR, statements of
witnesses and other related relevant documents (133 leaves), total 144 leaves.
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The detenue, as record would reveal, was also informed as regards making of
representation against the detention order if he so desired, both to detaining
authority and Government.
17. The grounds of detention are definite, proximate and free from any
ambiguity. The detenue was informed with sufficient clarity what actually
weighed with the detaining authority while passing detention order. The
detaining authority has narrated facts and figures that made it to exercise its
powers under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substance Act, 1988, and record subjective satisfaction that
detenue was required to be placed under preventive detention in order to prevent
him from committing any of the acts within the meaning of illicit traffic. The
detaining authority has informed detenue that he was involved in a number of
cases, of illicit trafficking of narcotic substances, which poses serious and grave
threat to the society particularly/especially young generation. So viewed, the
detenue is not to be heard saying that any of his Constitutional and Statutory
rights have been violated while detention order in question was served on him at
the time of its execution.
18. The instant case relates to illicit trafficking of narcotic drugs and
psychotropic substances. The drug problem is a serious threat to public health,
economy and growth of humanity. Our global community is facing serious
consequences of drug abuse and it undermines the socio- economic and political
stability and sustainable development. Besides, it also distorts the health and
fabric of the society and it is considered to be the originator for petty offences as
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well as heinous crimes like smuggling of arms & ammunition and money
laundering. The involvement of various terrorist groups and syndicates in drug
trafficking leads to threat to the national security and sovereignty of States by
the way of Narco-terrorism. The drug trafficking and abuse has continued its
significant toll on valuable human lives and productive years of many persons
around the globe. With the growth and development of world economy, drug
traffickers are also seamlessly trafficking various type of drugs from one corner
to other ensuring the availability of the contrabands for vulnerable segment of
the society who fall into the trap of drug peddlers and traffickers. Due to India’s
close proximity with major opium growing areas of the region, India is facing
serious menace of drug trafficking and as a spill- over effect, drug abuse
especially among the youth is a matter of concern for us.
19. In view of the foregoing discussion, it is clearly disclosed that it is not
the number of acts that are to be determined for detention of an individual but it
is impact of the act which is material and determinative. In the instant case the
act of detenue relates to drug trafficking, which has posed serious threat, apart
from health and welfare of the people, to youth, most particularly unemployed
youth, to indulge in such acts, ramifications thereof would be irreversible and
unimaginable. Petitioner has not been able to convincingly point out violation of
any statutory or constitutional provisions.
20. Having regard to the facts and circumstances of the case and
discussion made hereinabove, the petition is found to be devoid of any merit and
substance and is liable to be rejected. The petition is, thus, dismissed and the
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impugned order relating to preventive detention of the petitioner is upheld,
accordingly.
21. Detention record, as produced, be returned to the respondents through
learned Sr. AAG.
(M A Chowdhary)
Judge
JAMMU
19.08.2025
Raj Kumar
Whether the order is speaking: Yes
Whether the order is reportable: Yes