Jammu & Kashmir High Court – Srinagar Bench
Adil Hussain Mir vs Ut Of Jk And Others on 3 April, 2025
INTHE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 287/2024
Reserved on: 27.03.2025
Pronounced on: 03.04.2025
Adil Hussain Mir
... Petitioner(s)
Through: Mr. Ateeb Kanth, Advocate
Vs.
UT of JK and others
...Respondent(s)
Through: Mr. Zahid Q Noor, GA
CORAM:
HON'BLE MR. JUSTICE RAJESH SEKHRI-JUDGE
JUDGMENT
1. Challenge in this petition has been thrown to detention order No. DIV
COM (K)/45/2024 dated 16.04.2024, passed by Respondent No.2,
under Section 3 of the Prevention of Illicit Traffic and Narcotic Drugs
and Psychotropic Substances Act, 1988 (PITNDPS Act), vide which
the petitioner [“the detenu”], has been directed to be detained and
lodged in Central Jail Kot Bhalwal, Jammu, for a period to be
specified by the Government/Advisory Board.
2. The detenu, through his father, Shri Fayaz Ahmad Mir, has invoked
writ jurisdiction of this Court for the issuance of appropriate writs
commanding the respondents to release his person.
3. The petitioner has assailed the impugned order of detention on
multiple grounds, however, learned counsel for the petitioner has
confined his argument primarily on the ground that allegations
attributed to him in the grounds of detention may be a law and order
problem but do not qualify within the definition of Public Order under
Section 8 of the J&K Public Safety Act 1978 {PSA, for short}, and
that the grounds of detention are vague in nature, because there is no
specific allegation regarding involvement of the petitioner in the
unlawful activities attributed to him.
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4. On the other hand, the respondents, in the counter affidavit, are affront
with the contentions that the detenue is a notorious illicit drug peddler
and a principal dealer of Narcotic Drugs and Psychotropic Substances
in his area. He was exposing the youth and gullible minds, including
the school going children into the world of drugs in furtherance of
criminal intention to make them habitual addicts. It is also contention
of the respondents that the detenue was an active member of a larger
drug mafia operating not only in the local area of his residence but
also in the surrounding areas of his district. According, to the
respondents, the activities of the detenue have posed a serious threat
to the health and welfare of the people especially general people of
District Anantnag. The detenue being a member of an intricate drug
syndicate procure narcotics i.e. brown sugar/Heroin and Charas like
substances and have been continuously indulging in offences under
the NDPS Act. Therefore, he came to be apprehended in case FIR no.
133/2022, under Section 8/21-22 NDPS Act of Police Station
Bijbehara.
5. It is contention of the respondents that with a view to prevent the
detenue from indulging in similar activities, he was ordered to be
detained in accordance with the Provisions of the Act vide impugned
Order dated 16.04.2024. He was duly informed of his detention on the
grounds specified and that he has a right to make a representation to
the Government, if he so desires. The detention order was executed by
the concerned police and the grounds of detention was read over and
explained to him in the language which he understands. It is also
contention of the respondents that only after the Advisory Board was
satisfied that there was sufficient ground for his detention, the
Government confirmed the detention order on 10.06.2024, under
Section 9 (f) read with section (11) of the PITNDPS and he came to
be detained for a period of one year in Central Jail Kot Bhalwal,
Jammu. According, to the respondents, the detention of the detenue, in
the present case is precise and proximate and since all statutory
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constitutional Provisions and legal formalities of PSA have been duly
followed, there is no vagueness in the grounds of detention.
6. Having heard rival contentions of the parties, I have gone through the
detention record.
7. Learned counsel on the rival sides have reiterated their respective
pleadings in their arguments.
8. Before a closer look at the grounds urged in the memo of petition, it
shall be apt to have an overview of the background facts.
9. It is evident from a perusal of the grounds of detention as also the
impugned order of detention that detention in the present case traces
its origin to a solitary FIR No.133/2022 for offences under Section
8/21-22 NDPS ACT of police station, Bijbehara. Aside, the
allegations against the detenue are that he is a notorious illicit drug
peddler, becoming the principal dealer of Narcotic Drugs and
Psychotropic Substances in and around his area. He was a part of an
active member of a larger drug mafia, relentlessly involved in drug
trafficking, exposing the gullible minds of youth of his area including
the school going children into the menace of drugs, making them
habitual addicts. His activities posed a serious threat to the health and
welfare of the people; especially general people of District Anantnag
and it also have an adverse impact on the national economy. It is
alleged that the detenue is a member of intricate drug syndicate and,
therefore, with a view to prevent him from indulging similar type of
activities, he came to be detained under the Provisions of
PITNDPS Act.
10.In view of the aforesaid background, a question to be discoursed is
that whether allegation contained in the grounds of detention against
the detenue, would constitute an act amounting to disturbance of
public order. It is settled law that if ordinary law of the land is
competent to deal with criminal activities of a criminal, recourse to
the provisions of preventive detention laws are illegal. It is so because
the expressions “Public Order” and “Law and Order”, operate in
different fields and have different connotations. If an Act has the
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potentiality to disturb public order, it is the public at large which is
affected by the said criminal activity. On the other hand, a particular
criminal activity of a person shall be prejudicial to a particular
individual or members of the society at large. Breach of law, by
indulging in a criminal activity or in contravention of the provisions
of a particular statute, can be termed as a law and order problem, but
certainly it does not amount to disturbance of public order.
11.Back to the case, the detenue is found involved in a single FIR no.
133/2022 for offences under Section 8/21-22 of NDPS Act of police
station, Bijbehara. The charge sheet of the said case stands produced
in the court of Principal Sessions Judge, Anantnag on 12.10.2022. It is
contention of the respondents that since detenue “managed” to get bail
in the said case, therefore, normal law has proven insufficient.
12.Be it noted, that an accused involved in the commission of an offence
has a right to seek his enlargement on bail from the competent court
of law, and if he chooses to exercise his right, the prosecution is also
well within its right to oppose the plea right at the motion stage and if,
he succeeds in his endeavor, the prosecution or the State or the Union
Territory, as the case may be, has an efficacious remedy under the
ordinary law of the land to seek cancellation of his bail by
approaching the Trial court or even by approaching the higher forum.
13.What has been said, held and laid down regarding the issue by
Hon’ble Supreme Court in Banka Sneha Sheels vs. State of
Telangana & Ors reported as (2021) 9 SCC 415, is significant and
important to be discoursed off. It reads as:
“There can be no doubt that what is alleged in the five
FIRs pertain to the realm of “Law and Order” in that
various acts of cheating are ascribed to the Detenue
which are punishable under the three sections of the
Indian Penal Code set out in the five FIRs. A close
reading of the Detention Order would make it clear
that the reason for the said order is not any
apprehension of widespread public harm, danger or
alarm but is only because the Detenu was successful in
obtaining anticipatory bail/bail from the Courts in
each of the five FIRs. If a person is granted
anticipatory bail/bail wrongly, there are well-known
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HCP No. 287/2024remedies in the ordinary law to take care of the
situation. The State can always appeal against the bail
order granted and/or apply for cancellation of bail.
The mere successful obtaining of anticipatory bail/bail
orders being the real ground for detaining the Detenu,
there can be no doubt that the harm, danger or alarm
of feeling of security among the general public spoken
of in Section 2(a) of the Telengana Prevention of
Dangerous Activities Act is make believe and totally
absent in the facts of the present case.”
14.It is manifest from the aforequoted proposition of law enunciated by
Hon’ble Supreme Court that a person cannot be put under preventive
detention on the premise that he managed to secure bail from a
competent court.
15.The detenue in the present case has been booked in a sole FIR and
there is nothing to suggest that ordinary law of the land is not
competent to deal with the situation. The allegations leveled against
the detenue may be a serious law-and-order problem but certainly do
not fall within the category of ‘Public Order’. The apprehension of the
Detaining Authority or the cause of concern of the concerned police
that enlargement of the detenue will have an impact upon public faith,
is unfounded and cannot form basis for putting him under preventive
detention. The impugned order is liable to be quashed on this ground
alone.
16.The detenue has also questioned the impugned order of detention on
the ground of vagueness of allegations. The allegations against the
detenue in the grounds of detention are as follows:
“…You have transformed into a notorious illicit drug
peddler becoming the principal dealer of narcotic drug
and psychotropic substances in Bijbehara area and its
surroundings areas of your District. However, with the
passage to time, you developed contacts with drug
peddlers operative in District Anantnag and started
selling/dealing in drugs among the youth of your area
which have adverse impact on the younger generation.
You have continuously exposing and influencing the
young and immature minds, including school going
children by selling and inducting them in the evil
world of drugs and making them habitual addicts.
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HCP No. 287/2024
That you are a part and active member of larger drug
mafia who are relentlessly involved in drug trafficking
not only in local area of your residence but are
involved in such illegal activities at the District level
and also in the surrounding area of your district. Your
activities are directly affecting the health and welfare
of people especially general people of District
Anantnag and also have an adverse impact on the
national economy. You have been found that you have
adopted the drug trafficking as your regular source of
earning and have been motivating and influencing the
young minds into the drug consumption.
The credible sources reveal that you being a member
of an intricate drug syndicate procure narcotics i.e.
brown sugar/Heroin and Charas like substances and
have been continuously indulging in offences under the
provisions of Narcotic Drug and Psychotropic
Substances Act.”
17.The aforesaid allegations against the detenue are indeed serious.
However, the fact remains that there is only one FIR against him. Had
detenue being a chronic miscreant, as claimed by the detaining
authority in the grounds of detention, he would have been booked
under multiple cases and still could be dealt with in accordance with
the ordinary law of the land. The vague allegations that he is a
notorious drug peddler or principal dealer of narcotic drugs and
psychotropic substances or that he is an active member of a larger
drug mafia who expose and influence the youth of his area or that he
is a member of an intricate drug syndicate, do not satisfy the
requirements envisaged under section 8 of PSA, because such
unfounded allegations of the detaining authority have no connection
with the maintenance of public order. The sole criminal activity
attributed to the detenue does not appear to have been disturbed
normal life of people of District Anantnag. Therefore, in view of
vagueness of allegations made in the grounds of detention, the
detenue was prevented to make an effective representation against the
impugned order of detention.
18.In the context of what has been observed and discussed above, it is
held that a person involved in a solitary criminal activity cannot be put
under preventive detention, if ordinary law of the land is competent
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and sufficient to deal with such activity. The detaining authority is
under a legal obligation and constitutional mandate to provide in clear
terms, complete particulars of all the criminal activities attributed to
the detenue and if, relevant provisions of the penal code are sufficient
to deal with the activity attributed to a criminal, recourse to PSA or
preventive detention laws shall not only be illegal but
unconstitutional.
19.Having regard what has been observed and discussed above, the
present petition is allowed and impugned order of detention is
quashed. As a result, the detenue is directed to be released forthwith
from the detention, provided he is not involved in any other case or
offence.
20.Disposed of.
21.Record produced by learned counsel for the respondents is returned
back.
22.
(RAJESH SEKHRI)
JUDGE
SRINAGAR
03.04.2025
“Imtiyaz”
i. Whether the Judgment is Speaking? Yes
ii. Whether the Judgment is Reportable? Yes.
Imtiyaz Ul Gani
I attest to the accuracy and
authenticity of this document
04.04.2025 10:42
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