Jammu & Kashmir High Court – Srinagar Bench
Reserved vs Union Territory Of J&K And Others on 3 January, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
HCP no.213/2024
Reserved :
05.12.2024
Pronounced on: 03.01.2025
Shahid Ahmad Bhat
....... Petitioner(s)
Through: Mr. Asif Ali, Advocate
Versus
Union Territory of J&K and others
.....Respondent(s)
Through: Mr. Jehangir A. Dar, GA
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Quashment of Order no. DIVCOM “K”/64/2024 dated 18.04.2024 (for
brevity “order impugned”) passed by Divisional Commissioner,
Kashmir (for short “detaining authority”), in terms of Section 3 of
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 (hereinafter referred to as “Act of 1988”) placing
detenu, namely, Shahid Ahmad Bhat S/o Bashir Ahmad Bhat R/o
Brazloo Jageer District Kulgam under preventive detention to prevent
him from committing any of the actswithin the meaning of Illicit Traffic
in Narcotic Drugs and Psychotropic Substances Act, 1988, is sought on
the grounds made mention of therein.
2. Respondents have filed Reply Affidavit, in which it is insisted by them
that detenu is involved in illegal trade of illicit traffic in narcotic drugs
and psychotropic substances.
3. I have heard counsel for parties. I have gone through the detention
record produced by counsel for respondents and considered the matter.
4. Counsel for petitioner would contend that the material relied upon by
detaining authority while passing impugned order of detention, has not
been provided to detenu, violating the Constitutional and Statutory
procedural safeguards as provided to detenu under Article 22(5) of the
Constitution of India.
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4.1. In the context of above submission, I have gone through the detention
record produced by counsel for respondents. Perusal of Execution
Report as also Receipt of Grounds of Detention, forming part of
Detention Record, reveals that the material relied upon by detaining
authority has been given to detenu. Grounds of Detention have been
read over and explained to detenu in Urdu/Kashmiri language.
4.2. In such circumstances, contention of counsel for petitioner that material
relied upon by detaining authority to issue impugned order of detention
had not been served upon detenu, is misconceived.
5. It is also contention of counsel for petitioner that detaining authority has
not attributed any specific allegation against detenu and that vague
allegations have been levelled against detenu. It is also stated by him
that detaining authority has not assigned any compelling and cogent
reason for passing order of detention and that detaining authority has
not specified the authority before whom the representation has to be
made nor has detaining authority informed detenu to make
representation to him before the order could be approved/confirmed by
the Government.
5.1. The above submissions of counsel for petitioner are again
misconceived, for, perusal of grounds of detention reveals the
compelling and cogent reasons have been given by detaining authority
to pass order of detention and selling/dealing in drugs among youth of
the area which has adverse impact on the younger generation. It is also
mentioned in grounds of detention that detenu is selling drugs among
youth of the area which has adverse impact on the younger generation
and he is continuously exposing young and gullible/immature minds
including school going children into the heinous world of drugs and
making them habitual addicts.
5.2. Grounds of detention also make a mention that detenu is a history
sheeter inasmuch as he is involved in a number of FIRs registered
against him, viz. FIR no.144/2020 under Section 8/21, 22 NDPS Act
P/S Yaripora, in which 02 grams of Heroin was seized; and FIR
no.76/2022 under Section 8/20, 22 NDPS Act, P/S Yaripora, in which
100 grams of Charas was seized.
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5.3. It is also mentioned in grounds of detention that the contraband material
seized in connection with case FIR no.76/2022 was sent to Forensic
Science Laboratory, Srinagar, to ascertain its veracity and that the
report of FSL suggests that Charas was detected in the Exhibit no.NA-
31-4/22.
5.4. Thus, it is evident from grounds of detention that detenu is habitual in
indulging in activities, which poses serious threat to the health, wealth
and welfare of the people, especially young generation.
6. Perusal of the record also reveals that detenu has been informed to
make representation before the Government as well as detaining
authority. In examining the question whether the ordinary laws of the
land would have sufficed, and whether recourse to preventive detention
was unnecessary, it must be borne in mind that the compulsions of the
primordial need to maintain order in society without which the
enjoyment of all rights, including the right to personal liberty of
citizens, would lose their meaning, provide the justification for the laws
of preventive detention. These Laws suggest that an individual’s
conduct, prejudicial to maintenance of public order, security of State,
preservation of forest wealth, preventing a person from engaging in
illicit traffic in narcotic drugs and psychotropic substances, provides
grounds for satisfaction for a reasonable assessment of possible future
manifestations of similar propensities on the part of the offender. The
object of the law of preventive detention is not punitive, but is only
preventive. In preventive detention no offence is to be proved nor is any
charge formulated. The justification of such detention is suspicion and
reasonability.
7. The essential concept of preventive detention is that detention of a
person is not to punish him for something he has done, but to prevent
him from doing it. Its basis is the satisfaction of the Executive of a
reasonable probability of detenu acting in a manner similar to his past
acts, and preventing him by detention from so doing. Preventive
detention, an anticipatory measure, is resorted to when the executive is
convinced that such detention is necessary to prevent a person detained
from acting in a manner prejudicial to certain objects which are
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specified by the law. In preventive detention no offence is proved, and
justification of such detention is suspicion or reasonable probability.
The order of detention is based on a reasonable prognosis of the future
behaviour of a person based on his past conduct in the light of
surrounding circumstances. The power of preventive detention is
exercised in reasonable anticipation. It may or may not relate to an
offence. It does not overlap with the prosecution even if it relies on
certain facts for which prosecution may be, or may have been,
launched. An order of preventive detention may be made before or
during prosecution. It may be made with or without prosecution and in
anticipation or after discharge or even acquittal. The pendency of
prosecution is no bar to an order of preventive detention. An order of
preventive detention is also not a bar to prosecution.
8. A six Judge Constitution Bench of the Supreme Court way back in the
year 1951, in the case of The State of Bombay v. Atma Ram Shridhar
Vaidya, AIR 1951 SC 157, while looking into the scope subjective
satisfaction arrived at by the detaining authority has held that the same
is extremely limited and that the Court, while examining the material,
which is made basis of subjective satisfaction of detaining authority,
would not act as a court of appeal and find fault with satisfaction on the
ground that on the basis of the material before detaining authority,
another view was possible. Such being the scope of enquiry in this
field, and the contention of counsel for petitioner, therefore, cannot be
accepted. While going through the grounds of detention and dossier, I
do not find that grounds of detention are ditto copy of dossier supplied
by sponsoring authority. As is evident from the detention record, the
material has been supplied to detenu. and all this material was before
detaining authority when it arrived at subjective satisfaction that the
activities of the detenu are such, which would entail the preventive
detention under the Act.
9. It may be mentioned here that the powers of preventive detention under
the Act of 1988, are in addition to those contained in the Criminal
Procedure Code, where preventive detention is followed by an inquiry
or trial. By its very nature, preventive detention is aimed at preventing
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commission of an offence or preventing detained person from achieving
a certain end. The authority, making the order, therefore, cannot always
be in possession of full detailed information when it passes the order
and the information in its possession may fall far short of legal proof of
any specific offence, although it may be indicative of a strong
probability of impending commission of a prejudicial act. The Act of
1988, therefore, requires that the Central Government or a State
Government must be satisfied with respect to any person that with a
view to preventing him from engaging in illicit traffic in narcotic drugs
and psychotropic substances, it is necessary so to do, make an order
directing that such person be detained.
10. The acts, indulged in by persons, who act in concert with other persons
and quite often such activities have far-reaching ramifications on our
younger generation. These acts are preceded by a good amount of
planning and organisation by the set of people. They are not like
ordinary law and order crimes. If, however, in any given case a single
act is found to be not sufficient to sustain the order of detention that
may well be quashed, but it cannot be stated as a principle that one
single act cannot constitute the basis for detention. On the contrary, it
does. In other words, it is not necessary that there should be multiplicity
of grounds for making or sustaining an order of detention. The said
views and principles have been reiterated by the Supreme Court in
Gautam Jain v. Union of India another AIR 2017 SC 230.
11. Section 2 (e) of the Act of 1988 envisions that “illicit traffic”, in
relation to narcotic drugs and psychotropic substances, means: (i)
cultivating any coca plant or gathering any portion of coca plant; (ii)
cultivating the opium poppy or any cannabis plant; (iii) engaging in the
production, manufacture, possession, sale, purchase, transportation,
warehousing, concealment, use or consumption, import inter-State,
export inter-State, import into India, export from India or transhipment,
of narcotic drugs or psychotropic substances; (iv) dealing in any
activities in narcotic drugs or psychotropic substances other than those
provided in sub-clauses (i) to (iii); or (v) handling or letting any
premises for the carrying on of any of the activities referred to in sub-
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clauses (i) to (iv), other than those permitted under the Narcotic Drugs
and Psychotropic Substances Act, 1985 (61 of 1985), or any rule or
order made, or any condition of any licence, term or authorisation
issued, thereunder and includes: (1) financing, directly or indirectly,
any of the aforementioned activities; (2) abetting or conspiring in the
furtherance of or in support of doing any of the aforementioned
activities; and (3) harbouring persons engaged in any of the
aforementioned activities.
12. The present case relates to illicit trafficking of narcotic drugs. The drug
problem is a serious threat to public health, safety and well-being of
humanity. Our global society is facing serious consequences of drug
abuse and it undermines the socio-economic and political stability and
sustainable development. Besides, it also distorts health and fabric of
society and it is considered to be originator for petty offences as well as
heinous crimes, like smuggling of arms and ammunition and money
laundering. Involvement of various terrorist groups and syndicates in
drug trafficking leads to threat to the national security and sovereignty
of States by way of Narco-terrorism. 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
availability of contrabands for vulnerable segment of society who fall
into 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.
13. The Constitution framers had visualised danger of misuse of such type
of substances and, thus, made it part of directives issued to the State.
The Directive Principles, which are part of our Constitution, lay down
that the State shall make endeavours to bring about the prohibition of
substances injurious for health except for medicinal and scientific
purposes. In recent years, India has been facing a problem of transit
traffic in illicit drugs. The spill over from such traffic has caused
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tribulations of abuse and addiction. This trend has created an illicit
demand for drugs within the country. The illicit traffic in narcotic drugs
and psychotropic substances poses a serious threat to the health and
welfare of the people and activities of persons engaged in such illicit
traffic have a deleterious effect on the national economy as well.
Having regard to the persons by whom and the manner in which such
activities are organised and carried on, and having regard to the fact that
in certain areas which are highly vulnerable to the illicit traffic in
narcotic drugs, such activities of a considerable magnitude are
clandestinely organised and carried on, it is necessary for the effective
prevention of such activities to provide for detention of persons
concerned in any manner therewith.
14. The consequences of drug use usually are not limited to user and often
extend to the user’s family and the greater community. The
consequences of illicit drug use impact the entire criminal justice
system, taxing resources at each stage of the arrest, adjudication,
incarceration and post-release supervision process. It impacts
productivity. It causes premature mortality, illness, injury leading to
incapacitation and imprisonment all serve to directly reduce national
productivity. Public financial resources expended in the areas of health
care and criminal justice as a result of illegal drug trafficking and use
are resources which could otherwise be available for other policy
initiatives.
15. The global drug problem presents a multifaceted challenge that touches
the lives of millions worldwide. From individuals struggling with
substance use disorders to communities grappling with the
consequences of drug trafficking and organized crime, the impact of
drugs is far-reaching and complex. There is a great loss of productivity
associated with drug-related premature mortality.Although it is difficult
to place a dollar value on a human life, a rough calculation of lost
productivity can be made based on the present discounted value of a
person’s lifetime earnings.There are also health-related productivity
losses. An individual who enters a residential drug treatment program
or is admitted to a hospital for drug treatment becomes incapacitated
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and is removed from the labour force.Productivity losses in this area
alone are enormous. Health-related productivity losses are higher still
when lost productivity associated with drug-related hospital admissions,
including victims of drug-related crimes, is included. These imperative
aspects concerned with illicit traffic in narcotic drugs and psychotropic
substances cannot be overlooked or ignored.
16. To sum up, it is relevant to refer to the observations of the Supreme
Court that while dealing with the question of preventive detention under
the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974, in the case of Prakash Chandra Mohan v.
Commissioner, 1986 Cr.L.J. 786. The Supreme Court observed that it
must be remembered that observance of written law about the
procedural safeguards for protection of individual is normally the high
duty of public official but in all circumstances not the highest. The law
of self-preservation and protection of the country and national security
may claim in certain circumstances higher priority.
17. For the reasons discussed above, the instant writ petition is without any
merit and is, accordingly, dismissed with connected CM(s).
18. Detention record be returned to counsel for respondents.
(Vinod Chatterji Koul)
Judge
Srinagar
03.01.2025
Ajaz Ahmad, Secretary
Whether approved for reporting? Yes/No
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