HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP NO. 91/2024
CM(1894/2024)
CM(5752/2024)
Reserved On: 22.10.2024
Pronounced On: 31.10.2024
Mohammad Tajamul Masoodi(Age: 45 years)
…Petitioner(s)
S/O Peer BadruUd Din
R/O Bagander Pampore, Pulwama
Through his Wife:
Riffat Masoodi
W/O Mohammad Tajamul Masoodi
R/O Bagander Pampore, Pulwama
Through: Mr. S. R. Hussain, Advocate.
Vs.
1. UT of J&K through Financial Commissioner to
Government (Additional Chief Secretary)
Home.
2. Divisional Commissioner, Kashmir, Srinagar.
3. Senior Superintendent of Police, Baramulla.
4. Superintendent Central Jail, Kotebhalwal,
Jammu.
...Respondent(s)
5. Station House Officer, Police Station,
Baramulla.
Through: Mr. Jehangir Ahmad Dar, Government Advocate.
CORAM:
HON’BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
JUDGMENT
1. The instant petition has been filed on behalf of the detenu by
his wife, who is interested in the life and liberty of the detenu.
Page 1 of 30 HCP NO. 91/2024
2. It has been alleged that the detenu was called in the Police
Station and subsequently detained and sent to Central Jail, Kotebhalwal,
Jammu, under the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (for short “the Act”).
3. The petitioner is aggrieved of the order of preventive
th
detention bearing No. DIVCOM- 19 March, 2024
“K”/20/2024 dated
passed by the respondent No. 2-Divisional Commissioner, Kashmir,
Srinagar, against her husband, who she claims to be a businessman by
profession and a partner of the partnership firm “Adab Traders”,
engaged in the business of Trading Goods from Kashmir to other parts
of India from last nine years and is also engaged in cross border trading
of goods in strict compliance with guidelines and regulations issued by
the Government of India.
4. It is pleaded by the learned counsel for the detenu that, an
FIR No. 54/2017 came to be registered in the Police Station, Uri, against
the detenu for alleged commission of offences under section 8/21, 29 of
the NDPS Act and under Section 201 of Ranbir Penal Code. The further
case of the detenus is that, upon the completion of investigation in the
said case, final police report came to be presented before the competent
court, wherein the detenu came to be arrayed as accused No.3 alongwith
one Musadiq Afzal Masoodi and other co-accused and according to the
petitioner, the case is presently under trial before the competent court of
law.
Page 2 of 30 HCP NO. 91/2024
5. It is the further case of the petitioner that in the aforesaid
case, the afore-named co-accused (Musadiq Afzal Masoodi) came to be
enlarged on bail by the Hon ble Apex Court of India vide an order dated
’
th
9 August, 2023 and in light of the said development, the detenu also
applied for grant of bail before this Court on the ground of parity and
this Court allowed the said application and directed release of detenu on
th
bail in terms of order dated 15 January, 2024.
6. Pursuant to the aforesaid order passed by this Court and after
compliance of all the requisite formalities, the detenu came to be
released from detention from the place of his lodging i.e. District Jail
Kupwara.
7. However, the detenu filed a writ petition before this Court
which was registered as HCP No.33/2024, apprehending that the
respondent-Divisional Commissioner, Kashmir, may pass an order of
preventive detention against the detenu under the Act and sought a
direction against the respondents not to detain the detenu either under
NDPS Act or under any other preventive detention law on the basis of
FIR No.54/2017 registered under Sections 8/21, 29 of the Act, in which
the detenu was enlarged on bail by this Court, with a further direction to
restrain the respondents from taking any coercive measures against the
detenu.
8. The learned counsel for the petitioner Mr. S.R. Hussain
submits that the aforesaid writ petition came up for consideration before
Page 3 of 30 HCP NO. 91/2024
th
this Court on 14 February, 2024 and this Court has been pleased to
direct as under:
“The petitioner is apprehending that in order to frustrate
the bail liberty granted in favour of the petitioner, the
respondents 2 to 4 are resorting to preventive detention
mode of depriving the petitioner of his personal liberty
that brings him before this court through the medium of
this writ petition.
Admit.
Issue notice.
Ms. Shaila Shameem, Assisting counsel vice Mr.
Jehangir Ahmad Dar, learned GA, accepts notice on
behalf of respondent nos. 2 to 4.
Two weeks time is granted to learned counsel for
respondents for reply/objection. to file List on
04.03.2024.”
9. The learned counsel for the detenu further submits that when
the aforesaid writ petition was pending before this Court, the
Respondent No. 2 filed a detailed reply, in which a specific stand was
taken that after examining the report and the implications of the release
of the detenu, a request was made to the appropriate authority i.e.
Divisional Commissioner, Kashmir, for passing an order of detention
against the detenu. The said writ petition was dismissed by this Court in
th
terms of an order dated 4 March, 2024.
10. The detenu feeling aggrieved of the aforesaid order so passed
by this Court, preferred a Letters Patent Appeal bearing no. LPA No.
th
60/2024, which came up for consideration before this Court on 15
March, 2024, in which notice was issued to the respondents. The further
Page 4 of 30 HCP NO. 91/2024
case of the detenu is that during the pendency of the LPA, the detenu
th
came to be arrested by police on 29 March, 2024 and he was shifted to
Central Jail, Kotebhalwal, Jammu, to be detained under the provisions of
th
the Act in terms of the impugned order dated 19 March, 2024.
11. The specific case of the detenu is that, the order of detention
does not attribute any activity post release of the detenu on bail by this
th
Court on 15 January, 2024, and, therefore, the preventive detention in
the instant case is unwarranted, unjustified and has been passed without
application of mind. The Detaining Authority according to the learned
counsel for the petitioner has acted at the behest of SSP, Baramulla, who
has prepared the dossier and that too without application of mind. It is
the specific case of the detenu that sponsoring agency and the detaining
authority have not shown a single incident after release of the detenu on
bail and do not specify any explicit allegation against the detenu, which
are mere accusations and that too without any proof.
12. The instant petition has been preferred by the petitioner on
behalf of the detenu, challenging the order of detention bearing
th
No.DIVCOM-"K"/20/2024 dated 19 March, 2024 on the ground that
the allegations mentioned in the grounds of detention have no nexus
with the detenu and have been fabricated by the police in order to justify
its illegal action of detaining the detenu.
13. It has been vehemently argued by the learned counsel for the
petitioner that the allegations made in the grounds of detention are
vague, non-existent and no prudent man can make a representation
Page 5 of 30 HCP NO. 91/2024
against such allegation and passing of detention order on such grounds is
unjustified and unreasonable.
14. The further case of the detenu is that the detenu was already
on bail in FIR No. 54/2017 and the Detaining Authority despite having
knowledge about the bail of the detenu, has not spelled out the
compelling reasons to pass the order of detention, more particularly
given the fact that the detenu was at large in pursuance to the bail
granted by this Court and no illegal activity was thereafter attributed to
him. Thus, the order of detention suffers from non-application of mind
on part of Detaining Authority and deserves to be quashed.
15. It has been urged by the learned counsel for the petitioner
that the impugned order of detention has been passed in a cursory
manner, without any independent application of mind as mandated
under the Act, that too without arriving at a subjective satisfaction. He
further submits that order of detention does not attribute any activity
post registration of FIR and on the other hand, the detenu has been
detained solely on the basis of FIR No. 54/2017. It is the specific case of
the detenu that despite passing of the order granting bail by this Court,
the detenu has been detained on similar charges with incriminating
mentioned in the grounds of detention and there is no mention of grant
of bail to the detenu either in the order of detention or in the grounds of
detention and absence of same vitiates the order of detention, as all the
material which has been relied upon by the Detaining Authority while
passing the order of detention, has not been supplied to the detenu,
Page 6 of 30 HCP NO. 91/2024
which according to the learned counsel for the petitioner is violation of
his constitutional right to make an effective representation.
16. It has been further argued by the learned counsel for the
petitioner that Constitutional and statutory procedural safeguards have
not been adhered to by the respondents while passing the order of
detention, which is a replica of the police dossier and same is divested of
subjective satisfaction of the detaining authority, which is a prerequisite
before passing an order of detaining somebody, curtailing the liberty of
an individual. The Detaining Authority according to the learned counsel
for the detenu has remained oblivious to the crucial facts and
circumstances including the fact that the detenu was already on bail, as
such, no awareness was shown in the grounds of detention for drawing
subjective satisfaction while passing the order impugned. Thus, the
order impugned has been passed in a most mechanical manner, without
application of mind and on the dictates of sponsoring agency, which
cannot sustain the test of law.
17. It is the specific case of the detenu that the grounds of
detention being vague and ambiguous, are bereft of any merit, liable to
be rejected. Moreso, there are no compelling reasons mentioned in
impugned order, which could be a justifiable ground for passing the
impugned order of detention and on the other hand, apparently it seems
that same has been issued only to circumvent the regular criminal
process of trial, as the allegations leveled in the grounds of detention are
of general nature and there is no incriminating material to connect the
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detenu with the commission of any offence. It is specific case of the
learned counsel for the detenu that the detenu has submitted a
representation before the respondent No. 2, which was not accorded any
consideration and neither any material was furnished as requested in the
representation so that an effective representation could have been made
before the Government as well as the Advisory Board.
18. In case if there was any incriminating material against the
detenu or that the detenu has violated the terms and conditions of the
bail order, then the respondents ought to have availed the remedy of
seeking cancelation of bail, rather than passing the order of detention
with a view to curtail the right of the detenu to personal liberty by
passing detention order.
19. Lastly, the learned counsel for the petitioner has argued that
it is settled preposition of law that recourse to preventive detention shall
be taken by the State/Government as a matter of last resort when the
ordinary law of the land is deemed insufficient to prevent a person from
indulging in subversive activities. In the instant, case the detenu was
already facing trial under the stringent provisions of the Act and the
respondents instead of dealing with the detenu under the ordinary law,
have illegally taken recourse to preventive detention law with a view to
frustrate the order of bail, which was granted in favour of the detenu by
the competent court of law.
20. Learned counsel for the petitioner with a view to fortify his
claim has drawn attention of this Court to the grounds of detention, a
Page 8 of 30 HCP NO. 91/2024
perusal whereof reveals that the grounds are vague and are not supported
by any incident or reasoning, which could give a justifiable right to the
Detaining Authority to detain the detenu on the grounds which have
been mentioned in the grounds of detention. He has further drawn
attention of this Court to the grounds urged in the dossier and the allied
documents/reports, a perusal whereof reveals that the detenu was
allegedly supplying drugs against hefty amounts to the gullible youth,
which in turn has exposed them to different kinds of immoral and illegal
criminal tendencies and, as such, resort to thefts and other illegal
activities in order to purchase drugs from the detenu. Learned counsel
for the detenu submits that to whom the detenu was supplying the drugs,
has not been spelled out in the grounds of detention, which in turn has
exposed the youth to different kinds of immoral and illegal activities,
which resulted in thefts and other illegal activities. In absence of any
cogent reason, the allegation levelled in the grounds of detention is
bereft of any merit and cannot be the basis for detaining the detenu.
21. The learned counsel for the detenu further submits that how
and under what circumstances the Detaining Authority has arrived at a
subjective satisfaction that the detenu has adopted the drug trafficking as
a regular source of earning in absence of any past incident of the
petitioner prior to the registration of FIR or for that matter any other
incident pursuant to the registration of FIR or securing bail. He submits
that only bald allegations have been levelled against the detenu and that
too in absence any sufficient material or giving the details of such
Page 9 of 30 HCP NO. 91/2024
incident and thus, the said allegation levelled in the grounds of detention
cannot be t
he basis for curtailing somebody’s liberty by passing an order
of detention. Thus, the order of detention according to the learned
counsel for the detenu is liable to be quashed.
Per contra
22. , reply has been filed on behalf of respondents, in
which the respondents have taken a specific stand that all the procedural
safeguards as envisaged under law have been followed in its letter and
spirit by the respondents while passing the order of detention and thus,
the order impugned is perfectly legal, justified and inconsonance with
the detention law.
23. Mr. Jehangir Ahmad Dar, learned Government Advocate has
vehemently argued that the scope and object of the preventive detention
is designed to safeguard the society and the fundamental principle of
preventive detention is not to punish an individual for his past actions
but to prevent him from future actions that may pose a threat for the
society at large and the detention order can be passed on the executive s
’
reasonable belief in the probability or likelihood that the detenu may
engage in activities in future which are detrimental to public health or
security of the State. The learned counsel for the respondents has
highlighted the menace of drug trafficking and its abuse poses a great
threat to the society, leading to social degradation, health crises and the
destabilization of the communities and the detention laws are crucial in
curbing these activities and safeguarding public order.
Page 10 of 30 HCP NO. 91/2024
24. As per the stand of the respondents, the detention order has
been based on a well-founded conduct of the detenu which could be
inferred from the detenu’s past conduct and the surrounding
circumstances, which could establish a continuous and direct link
between his past behavior and his current activities. The cumulative
assessment of the grounds of detention has led the Detaining Authority
to arrive at a subjective conviction that preventive detention in the
instance case was warranted and accordingly, the order impugned was
passed.
25. Learned counsel for the respondents with a view to draw
distinction between the prosecution under criminal law and an order of
detention under the detention law, submits that the former is punitive
and the latter is preventive. He has drawn attention of the Court towards
nd
the fact that on 2 July, 2017 pursuant to a reliable information, District
Police Baramulla, along with officials of the Security Wing and
Customs Department, while checking the goods being transported from
Pakistan Occupied Kashmir (PoK) to TFC Salamabad, Uri, in a truck
bearing Registration No. AJ&KXA-267, recovered 1,332 packets of
brown sugar concealed/hidden in 333 suit boxes, weighing 66.58 KG,
which were being carried from Chakoti, Muzaffarabad, PoK.
26. Mr. Dar, learned Government Advocate has laid much
emphasis on the quantity which has been recovered and the consignment
according to the learned counsel for the respondents was ordered by the
detenu with active aid and assistance of his co-associate, namely,
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Musadiq Afzal Masoodi and it was only during the course of
investigation of the case that the detenu and his other associates surfaced
in the commission of offences and were subsequently arrested in the
aforesaid case. The learned counsel submits that since the detenu was an
active member of large drug mafia who was relentlessly involved in
drug trafficking, not only in local area of his residence but involved in
such illegal activities at the district level as well which was directly
effecting the health and welfare of the people and was having an adverse
impact on the national economy as well. In the aforesaid backdrop, with
a view to prevent the detenu from further committing any offence under
the provisions of the Act, the Detaining Authority issued the order of
detention.
27. The decision of Detaining Authority as per the record was
based on concrete evidence gathered through surveillance, information
reports and intelligence inputs indicating his direct involvement in
trafficking narcotics across State borders, which led to the passing of the
order impugned. It has also been pleaded in the reply affidavit that the
concerned police have indicated in the dossier that the detenu, after
being released on bail and under surveillance of security agencies, has
been found to be involved in drug trafficking, thereby necessitating his
immediate detention.
28. It has been further submitted by the learned counsel for the
respondents that the Detaining Authority was fully aware of the
detenu’s
release on bail and all the material has been supplied to the detenu which
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fact is borne from the record. As per the learned counsel for the
respondents the documents comprising of 74 leaves which includes all
the material, have been supplied to the detenu, which could be
corroborated from the execution report from the original record and
thus, the allegation of the detenu that he has not been supplied all the
material is contrary to record and liable to be rejected.
29. The learned Government Advocate further submits that wife
of the detenu has preferred a representation before the competent
authority, which representation was accorded due consideration and was
rejected by passing a detailed order. It is not so, even the Advisory
Board has also accorded due consideration in conformity with the Act
and rejected the case of the detenu, however, the learned counsel for the
petitioner has taken a contrary stand that the respondents have not taken
any specific stand in the counter affidavit with respect to the rejection of
the representation of the detenu and thus, the detenu was not aware of
the passing of any such order.
30. The learned counsel for the respondents has also made an
emphasis that the satisfaction of the Detaining Authority is a subjective
satisfaction, based on material and cannot be normally interfered as
preventive detention under the Act is a proactive measure to disrupt drug
trafficking with a view to prevent the spread of addiction and protect
individuals from the devastating consequences of its abuse. Since detenu
according to the learned counsel was involved in huge racket where
Page 13 of 30 HCP NO. 91/2024
66.58 KGs of brown sugar was seized, it was sufficient for the Detaining
Authority to detain the detenu on the basis of the sole FIR.
31. The respondents in the reply affidavit have taken a stand the
continuous
surveillance and monitoring of the detenu’s activities post
bail have revealed an unabated involvement in the criminal activities,
which justifies the action of the respondents in passing the order
impugned as it demonstrates a persistent and imminent threat to public
health and national security.
32. Mr. Dar, learned counsel for the respondents submitted that
there is a report of Police Station, Uri, that the detenu was reportedly
trying to re-establish his links with the so-called drug mafia for cross
border narcotics. He further submits that this adverse material was also
supplied to the detenu and was also the basis for passing the order of
detention.
33. Lastly, the learned counsel for the respondents submitted that
both the sponsoring authorities i.e. SSP, Baramulla, and the Detaining
Authority were alive to the fact of detenu being enlarged on bail and the
material in this regard i.e. the orders passed by the competent court and
other relevant material has been supplied to the detenu. Thus, the
allegation of the detenu that the respondents were not alive to the detenu
being enlarged on bail, is factually incorrect and denied specifically as
the record says otherwise.
Page 14 of 30 HCP NO. 91/2024
34. Insofar as the specific allegation of the detenu that the copy
of the dossier has not been furnished to him, the same is also contrary to
the record.
35. Mr. Dar, learned Government Advocate submits that as per
the original record, copy of the dossier was furnished to the detenu and
the allegation to the contrary is without any basis and liable to be
rejected. He further submits that bail in the instant case was granted by
the competent court only in the light of the delay occurred in the instant
case for delayed trial and not on merits and, thus, the detenu cannot
draw any advantage with respect to the factum of grant of bail. In case if
the bail could have been granted on merits, then perhaps the detenu
could have drawn any advantage on merits but in the instant case, since
the bail has been granted for delay in the trial thus, the detenu cannot
draw any advantage with regard to his enlargement on bail and both the
authorities i.e. the Detaining Authority and the SSP concerned were
alive to the fact that the bail has been granted to the detenu for delayed
trial and not on merits.
LEGAL ANALYSIS:
36. After carefully considering the arguments from both sides
and examining the record meticulously, I have given my thoughtful
consideration to the relevant facts and the applicable law in this case.
37. The present case relates to illicit trafficking of narcotic
drugs. The grounds of the detention indicate the alleged involvement of
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the detenu in the trafficking of 66.58 kg of brown sugar. The grounds
for detention emphasize the recurring nature of these offences, which
pose a significant threat to public health and societal stability. Drug
abuse not only affects individual lives but also undermines the socio-
economic fabric of communities. The interconnectedness of these
offences indicates a broader issue that impacts national security and
health. The global drug problem aggravates challenges faced by
societies, particularly as younger generations fall victim to addiction.
Traffickers exploit vulnerabilities, ensuring a continuous supply of
narcotics, which further endangers public safety and well-being.
38. The Directive Principles of State policy, which are part of
our Constitutions lays down that the State should strive to prohibit
harmful substances, except for medical and scientific uses. Recently,
India has been struggling with issues related to the transit of illegal
drugs, which has led to increased cases of abuse and addiction. This
situation has generated a growing demand for drugs within the country.
The illegal trade in narcotic drugs and psychotropic substances poses
significant risks to public health and welfare, and the activities of those
involved in this trade also negatively impact the national economy as
well.
39. It was argued by the learned counsel for the detenu that the
grounds of the detention have no nexus with the detenu and have been
fabricated by the police in order to justify its illegal action of detaining
the detenu.
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40. A review of the detention record reveals that the detenu has
been implicated in multiple criminal cases, specifically FIR No. 54/2017
under NDPS Act and FIR No. 78/2017 under section 420, 467, 468, 109
RPC. These cases detail the detenu's involvement in serious drug-related
offences. Given the habitual nature of his drug peddling activities, the
court finds that the detenu's conscious participation in the illegal
trafficking of narcotics and psychotropic substances constitutes a
significant threat to public health and welfare. This assessment
underscores the need for preventive measures to safeguard the
community from the dangers posed by such illicit activities.
Accordingly, the first ground urged by the detenu is not tenable as the
respondents have submitted the detention record to support their position
stated in the counter affidavit.
41. In so far as the contention of the Learned Counsel for
petitioner is concerned that the grounds of detention are irrelevant,
vague, and unclear, having no proximate and live link with the
impugned detention order is also not tenable and liable to be rejected for
the reason that the grounds of detention clearly indicate
the petitioner’s
alleged activities which are clearly outlined. Specifically, the grounds
mention about the FIRs filed against the petitioner, demonstrating a
consistent pattern of behavior that threatens public order. The details of
these incidents are explicitly noted, making the grounds of detention
clear rather than vague. The most recent discreet report of SHO P/S Uri
cited is of 13-02-2024, which is proximate in time to the date of
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impugned detention order.
Therefore, the petitioner’s claim of a lack of
a direct connection between the cited incidents and the detention order is
not supported by the evidence.
42. Next, it has been argued by learned counsel for the petitioner
that impugned order of detention has been passed in a cursory manner,
without any independent application of mind as mandated under the Act,
that too without arriving at a subjective satisfaction. He further submits
that order of detention does not attribute any activity post registration of
FIR and on the other hand, the detenu has been detained solely on the
basis of FIR No. 54/2017.
43. In the above context, a perusal of the grounds of detention
reveals that the alleged activities of the petitioner have been specifically
mentioned therein. In the grounds of detention, reference has been made
to the post bail violations and the activities of the detenu after his release
are highly objectionable as reportedly he along with his associates have
started indulging in illegal drug trafficking. Viewing the seriousness of
the matter and its overall impact upon the people, particularly on
younger generation, After the release of the detenu, he was put under
proper surveillance by the security agencies and during his release
detenu had reportedly visited Uri area of Baramulla which is suggestive
of the fact that the detenu is trying to revive his illegal activities which
poses a serious threat to the security of the state. And one solitary
incident of such a huge quantity of Brown Sugar is enough to detain
someone like the detenu.
Page 18 of 30 HCP NO. 91/2024
44. This court with a view to proceed further deems it proper to
answer an important question Whether a detention order can be
“
passed on a solitary incident
?”
45. This Court
is fortified by the view taken by the Hon’ble
Supreme Court in the case titled Debu Mahato vs State of West
“
Bengal (1974) 4 SCC 135 . The relevant para is as under:
”
he order of detention is essentially a
“2…………..t
precautionary measure and it is based on the
reasonable prognosis of the future behavior of a
person based on his past conduct judged in the
light of the surrounding circumstance. Such past
conduct may consist of one single act or a series of
acts………”
46. It has also been contended by learned counsel for the
petitioner that the detenu was not provided with all the material
necessary for making an effective representation to the detaining
authority.
47. The argument presented by the counsel for the detenu, has
been refuted by the respondents. The record reveals that the detenu has
not approached this Court with clean hands and have suppressed
material facts to the extent that he has filed a representation before the
respondents on 12-04-2024 and same was disposed of on 09-09-2024.
Following this process and considering all relevant facts, the Advisory
Board concluded that sufficient cause existed for the detenu's continued
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detention. Subsequently, the Government confirmed his detention for a
period of one year starting from the date of the execution of detention
order, w.e.f. 30-03-2024 till 29-03-2025 Thus, the claim of the detenu
regarding insufficient materials for representation lack merit, given the
opportunities provided to the detenu.
48. Further it was argued by the learned counsel for detenu that
the Constitutional and statutory procedural safeguards have not been
adhered to by the respondents while passing the order of detention,
which is a replica of the police dossier and same is divested of
subjective satisfaction of the detaining authority, which is a prerequisite
before passing an order of detaining somebody, curtailing the liberty of
an individual.
49. The detention record provided by the respondents indicates
that the detention order was issued on 19-03-2024 and executed within
eleven days, i.e. on 30-03-2024. It further shows that the detenu was
notified of the detention that the contents of the detention warrant and
grounds were explained to him in a language he understood, with his
signature obtained as acknowledgment. The record demonstrates that the
detaining authority adhered to the legal procedures required for issuing a
detention order, thus mitigating any claims of procedural irregularities.
Additionally, the respondents have provided all the necessary
documents, ensuring he was aware of his right to make representations
to both the Government and the detaining authority regarding his
detention. As a result, the argument presented by the detenu
’s counsel
Page 20 of 30 HCP NO. 91/2024
regarding procedural issues lack legal merit and is therefore rejected.
The detention order appears to be valid and in compliance with
established legal standards.
50. Moreover the learned counsel for the detenu has placed
reliance over order passed by a Coordinate Bench of this court, wherein
the relief has been granted by quashing detention order in favour of a co-
accused and the detenu is also praying for the similar relief. So far as the
parity in detention matter is concerned there are no hard and fast rules
regarding grant or refusal of relief as each case has to be considered on
its own merits and record. There cannot be any parity with respect to the
detention matters as each case has to be evaluated on its own merit
based on its individual circumstances and record.
51. The law of preventive detention is designed primarily to
prevent future harm rather than to punish past actions. Unlike criminal
proceedings, where specific offences must be proven, preventive
detention relies on suspicion and reasonable belief that an individual
may pose a threat. This means that the authorities do not need to
establish guilt for a prior crime; instead, the focus is on preventing
potential actions that could endanger public safety.
52. Preventive detention serves as a proactive measure employed
by the executive when it believes that detaining an individual is
necessary to prevent actions that could harm specified interests outlined
by law. Unlike criminal proceedings, where an offence must be
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established, preventive detention is justified by suspicion or a reasonable
belief about future conduct.
53. The decision to detain is based on a careful assessment of an
individual's past behavior and the surrounding circumstances, aiming to
predict potential future threats. Importantly, preventive detention can
occur either before or during the prosecution of a case; the existence of
ongoing prosecution does not preclude the issuance of a detention order.
Similarly, a preventive detention order does not prevent subsequent
criminal prosecution for any related offences. This dual approach
reflects the need to balance individual rights with the imperative of
maintaining public safety.
54. The issue Whether grant of bail on merits or any default
“
provision can make any difference in the Subjective Satisfaction of
detaining authority?
55. Reliance is placed on the Judgment dated 20.12.2022 passed
by Bombay High Court in Criminal Writ Petition No.626/2022 titled
“
Alakshit V/S The State of Maharashtra ( Paragraph No.13) .
”
13. It is well settled law that the grounds on which an
“
accused, and a proposed detenu, is granted bail also
form important part of the material available against
such a person and therefore, it is the duty of the
Detaining Authority to also consider that material.
After all, the object of a preventive detention order
passed under Section 3(1) of the MPDA Act is to curb
criminal activities of the person which are considered
Page 22 of 30 HCP NO. 91/2024
prejudicial to the maintenance of public order. Grant
of bail is an important factor which goes into making
up of the requisite satisfaction of the Authority. When
considered appropriately, the grounds of bail do impact
the decision of the Authority, one way or the other. We
would illustrate the point by giving a few examples. In
a given case, a person may be granted bail on a
ground, inter alia, that he is not likely to tamper with
the prosecution's evidence or witnesses. This would be
a ground which may strengthen the case of that person
and it may possibly restrain the Authority from passing
any detention order. In another case, a proposed
detenu is granted bail, not on merits of the matter but,
upon a default ground under Section 167 of the Code
of Criminal Procedure. There may be another case
where the person is granted temporary bail for
fulfilling some urgent purpose. In both of these
examples, the grounds of bail may not perhaps help the
proposed detenu and the Authority may possibly find
them to be all the more reason for ordering preventive
detention of such a person, provided the other criteria
is fulfilled. Such is the importance of the grounds of
bail and therefore, they are required to be considered
by the Detaining Authority while passing the order of
detention. This is the law laid down by the Apex Court
in the case of Abdul Sathar Ibrahim Manik Vs. Union
of India (1991 AIR 2261).
56. The grant of bail plays a crucial role in the assessment of the
detaining authority's required satisfaction. When considered carefully,
the reasons for grant of bail can significantly affect the authority's
decision. For example, if bail is granted because the individual is
unlikely to tamper with evidence or witnesses, this can strengthen their
Page 23 of 30 HCP NO. 91/2024
case and may deter the Authority from issuing a detention order. On the
other hand, if bail is granted not on the merits of the case but due to a
procedural default under Section 167 of the Code of Criminal Procedure,
or for a temporary urgent purpose, these circumstances might not benefit
the detenu. In such situations, the Authority might view these
circumstances as further justification for preventive detention, provided
other criteria are satisfied. Therefore, the grounds for bail are essential
and should be carefully considered by the Detaining Authority when
making a decision on detention.
57. This Court is fortified
by the view taken by the Hon’ble
Supreme Court in case titled Sasti @ Satish Chowdhary Vs. State of
“
West Bengal; (1972) 3 SCC 826 . The relevant para is as under:-
”
“It is always open to the detaining authority to pass
an order for the detention of a person if the grounds
of detention are germane to the object for which a
detention order can legally be made. The fact that
the particular act of the detenu which provides the
reason for the making of the detention order
constitutes an offence under the Indian Penal Code
would not prevent the detaining authority from
passing the order for detention instead of proceeding
against him in a court of law. The detaining
authority might well feel that though there was-not
sufficient evidence admissible under the Indian
Evidence Act for securing a conviction, the activities
of; the person ordered to be detained were of such a
nature as to justify the order of detention. There
would. be no legal bar to the making of detention
order in such a case. It would, however, be
imperative that the incident which gives rise to the
apprehension in the mind of the detaining authority
and induces that authority to pass the order for
detention should be relevant and germane to, the
object for which a detention order can be, made
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under the Act. Even in cases where a person has
been actually prosecuted in a court of law in respect
of an incident and has been discharged by the trying
magistrate, a valid order of his detention can be
passed against him in connection with that very
incident.”
58. The Hon'ble Supreme Court, in Criminal Appeal No. 1064 of
2019 arising out of SLP (Crl.) No. 5459 of 2019, titled Union of India
“
and Another v. Dimple Happy Dhakad reported as (2019)20 SCC
609 , has held that an order of detention is not a curative, reformative,
”
or punitive action, but a preventive action. The avowed objective of
preventive detention is to preclude antisocial and subversive elements
from imperiling the welfare of the country, compromising public health
and national security or disturbing public tranquility.
59. Whether a parallel prosecution or remedy
The issue “
available in ordinary law can act as a bar to invoke preventive
detention? has be in the case
” en answered by the Hon’ble Apex Court
titled Haradhan Saha vs State of West Bengal (1975) 3 SCC 198 .
“ ”
The relevant para is reproduced as under:
32. The power of preventive detention is qualitatively
different from punitive detention. The power of
preventive detention is a precautionary power exercised
in reasonable anticipation. It may or may not relate to
an offence. It is not a parallel proceeding. It does not
overlap with prosecution even if it relies on certain
facts for which prosecution may be launched or may
have been launched. An order of preventive detention
may be made before or during prosecution. An order of
preventive detention may be made with or without
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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. It
is based on a reasonable prognosis of the future
behavior of a person based on his past conduct in the
light of the surrounding circumstances.
60. The issue Whether a solitary offence involving huge
“
amount of contraband and subsequent field reports for which
prosecution has not been launched, can cause peril to public health
and what can be its impact on society
?”
61. In the present case, the detenu was involved in trafficking of
huge amount of heroin and was also caught in possession of the same.
The detaining authority recorded finding that this has serious impact on
the economy of the nation and is also satisfied that the detenu has
propensity to indulge in the same act of smuggling and passed the order
of preventive detention, which is a preventive measure. Based on the
documents and the materials placed before the detaining authority and
considering the individual role of the detenu, the detaining authority
satisfied itself as to the detenu continued propensity and his inclination
to indulge in acts of prejudicial activities of illicit traffic of narcotics and
psychotropic substances which poses threat to the health and welfare of
the citizens of this country. The offences committed by the detenu are so
interlinked and are of such nature that these affect security and health of
the nation.
Page 26 of 30 HCP NO. 91/2024
62. State of Bombay v.
Hon’ble Supreme Court in the case of “
Atma Ram Shridhar Vaidya, reported as AIR 1951 SC 157 , has held
”
that while looking into the scope of 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.
63. The detention order is clearly a preventive measure designed
to protect society. When preventive detention is intended to safeguard
the nation’s safety and security, it is essential to balance individual
liberty with societal needs. The purpose of preventive detention is not to
punish someone for past actions, but rather to stop them from engaging
in harmful behavior in the future. In Naresh Kumar Goyal v. Union of
“
India and others reported as (2005) 8 SCC 276 , it was held as under:-
”
“8. 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 antisocial 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 protection to society.
The authorities on the subject have consistently
taken the view that preventive detention is devised to
Page 27 of 30 HCP NO. 91/2024
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………”
64. This court is further
fortified by view taken by the Hon’ble
Supreme Court in the case titled Haradhan Saha vs State of West
Bengal (Supra). The relevant Para is as under:
34. The recent decisions of this Court on this subject
are many. The decisions in Borjahan Gorey v. The
State of W. B., Ashim Kumar Ray V. State of W. B.;
Abdul Aziz v. The District Magistrate, Burdwan and
Debu Mahto v. State of W. B. correctly lay down the
principles to be followed as to whether a detention
order is valid or not. The decision in Biram Chand v.
State of U. P. which is a Division Bench decision of
two learned Judges is contrary to the other Bench
decisions consisting in each case of three learned
Judges. The principles which can be broadly stated
are these. First, merely because a detenu is liable to be
tried in a criminal court for the commission of a
criminal offence or to be proceeded against for
preventing him from committing offences dealt with in
Chapter VIII of the Code of Criminal Procedure
would not by itself debar the Government from taking
action for his detention under the Act. Second, the
fact that the Police arrests a person and later on
enlarges him on bail and initiates steps to prosecute
him under the Code of Criminal Procedure and even
lodges a first information report may be no bar
against the District Magistrate issuing an order under
the preventive detention. Third, where the concerned
person is actually in jail custody at the time when an
order of detention is passed against him and is not
likely to be released for a fair length of time, it may be
possible to contend that there could be no satisfaction
on the part of the detaining authority as to the
likelihood of such a person indulging in activities
which would jeopardize the security of the State or the
public order. Fourth, the mere circumstance that a
detention order is passed during the pendency of the
Page 28 of 30 HCP NO. 91/2024
prosecution will not violate the order. Fifth, the order
of detention is a precautionary measure. It is based on
a reasonable prognosis of the future behavior of a
person based on his past conduct in the light of the
surrounding circumstances.
65. The Hon'ble Supreme Court in the case titled Union of
“
India v. Paul Manickam (2003) 8 SCC 342 has upheld the validity of
”
preventive detention in cases, where there is credible and substantive
evidence of an individual's involvement in activities that pose a
significant threat to national security and public health. So far as the
instant case is concerned the detenu is involved in huge racket where
66.58 KGs of brown sugar was seized, it is sufficient for the Detaining
Authority to detain the detenu, so as to avoid the significant threat to
national security and public health.
CONCLUSION:
66. The ongoing observation and monitoring of the detenu
’s
actions after being released on bail have shown a continued participation
in criminal activities. This sustained involvement in unlawful and anti-
national actions supports the rationale for the preventive detention order,
as it indicates a persistent and immediate risk to public safety, health and
welfare of the society and national security. Since normal law has not
been sufficient to stop drug trafficker from indulging in such activities,
his detention order was passed and considering the aforesaid
circumstances, the detention order made by the detaining authority
stands upheld.
Page 29 of 30 HCP NO. 91/2024
67. For the foregoing reasons, I do not find any merit in this
petition. The same is, accordingly, dismissed.
68. The detention record be returned to the learned counsel for
the respondents.
(WASIM SADIQ NARGAL)
JUDGE
SRINAGAR:
31.10.2024
“HAMID”
i. Whether Judgment is Reportable? Yes/No
ii.
Whether Judgment is Speaking? Yes/No
Abdul Hamid Bhat
I attest to the accuracy and
authenticity of this document
05.11.2024
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