Sr. No. 46
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
ATJAMMU
LPA No. 114/2024 in
HCP No. 85/2023
Priya Devi @ Mani, Aged 54 years, .....Appellant
W/o Kamlesh Kumar,
R/o Ward No. 4,
Near Govt. Middle School, Village Chak
Drab Khan,Tehsil Kathua, J & K
A/p District Jail, Kathua.
Through :- Mr. Mayank Gupta, Advocate
v/s
1. UT of J & K through .....Respondent(s)
Principal Secretary, Home Department,
J & K Civil Secretariat, Jammu.
2. Divisional Commissioner, Jammu
Panama Chowk, Jammu.
3. Senior Superintendent of Police, Kathua
DPO Kathua.
4. Superintendent of Jail,
District Jail Kathua, J & K.
Through :- Mr. Amit Gupta, AAG
CORAM: ATUL SREEDHARAN, JUDGE
HON’BLE MR. JUSTICE
SANJAY DHAR, JUDGE
HON’BLE MR. JUSTICE
ORDER
30.09.2024
ORAL
(Atul Sreedharan-J)
1. The present petition has been preferred by the appellant, who is
aggrieved of the order/judgment passed by the learned Single Judge
in HCP No. 85/2023. By the said judgment, the petition for Habeas
Corpus moved by the appellant herein was rejected by the learned
Single Judge. The appellant is undergoing detention under the
provisions of the Prevention of Illicit Traffic in Narcotic Drugs and
2
LPA No. 114/2024 in
HCP No. 85/2023
Psychotropic Substances Act, 1988 (hereinafter, for the sake of
brevity as the PITNDPS Act ).
‘ ’
2. The brief facts of the case which require reiteration herein are
as follows:
2.1 On the basis of information/material given to the Detaining
Authority by the District Police, the Detaining Authority arrived at
the subjective satisfaction that the appellant is a recidivist drug
peddler who is engaged in illicit trade of narcotics and has been
doing so since 2020. The appellant has been apprehended thrice and
from her possession illicit drugs were recovered and FIRs against
her have been registered in the Police Station concerned.
2.2 It was the case of the State before the learned Single Judge that the
detaining authority was aware that the appellant had been enlarged
on bail in all the three cases but was of the opinion that if the
appellant was set at large, it will bolster her confidence and she
would continue with her illegal activities and also may have the
propensity of expanding her trade to other parts of the Union
Territory, having a detrimental effect on the life of the youth in that
area. Subjective satisfaction of the detaining authority was formed
upon the material placed by the Police.
2.3 Before the learned Single Judge, there were four grounds that had
been raised by the appellant;
2.3.1 Firstly, that the detention of the appellant was ordered by the
detaining authority in contravention of the procedure laid down in
the PITNDPS violating her constitutional safeguards;
3
LPA No. 114/2024 in
HCP No. 85/2023
2.3.2 Secondly, that the order of the detaining authority did not disclose
application of mind and that he failed to appreciate that the
appellant, though made an accused in three consecutive FIRs, was
granted bail by the competent court, despite the rigors of Section 37
of the NDPS Act. It was also argued before the learned Single
Judge that the State was not aggrieved by the enlargement of the
appellant on bail as it never moved any application for cancellation
of bail granted to the appellant which constituted non application of
mind by the detaining authority as so stated by the learned counsel
for the appellant;
2.3.3 Thirdly, it was argued before the learned Single Judge that the
detaining authority failed to accord an appropriate opportunity to
the appellant to make an effective representation and that the
communication of the detaining authority informing the appellant of
her right of making a representation did not indicate the time line
within which such representation could have been made before the
detaining authority and that the same violated the fundamental right
of the detenue under Article 22 (5) of the Constitution of India;
2.3.4 Lastly, the ground was taken that the detaining authority failed to
take into consideration the fact that the appellant, though involved
in three different cases of illicit trafficking of narcotic drugs, the
substantive law was sufficient enough and the same was already
proceeding against her. In the absence of failure of the ordinary law
of the land, the detaining authority could not have resorted to the
provisions under the PITNDPS Act.
4
LPA No. 114/2024 in
HCP No. 85/2023
3. Learned counsel for the appellant has argued that his client is an
illiterate housewife and is a resident of Kathua who only understood
Punjabi language. He has further drawn our attention to the order of
detention and also to the execution report. On the basis of the said
documents, the learned counsel for the appellant has stressed that
the said documents do not disclose that her right to make a
representation before the detaining authority was informed to her in
Punjabi language which according to learned counsel for the
appellant is her mother-tongue.
4. Learned counsel for the appellant has also submitted that failure to
inform the appellant about her right to move a representation before
the detaining authority within a specified time limit, vitiated the
order of detention, as the appellant was left without recourse to
move a representation, after the Government had taken a decision
approving the order of detention thereby, rendering the detaining
authority functus- officio.
5. Learned counsel for the appellant has also placed before us a
compendium of judgments but has sought to rely upon two of them.
The first judgment has been passed by the learned Single Judge of
this Court in Sheela Devi @ Sheelo vs. UT of J & K & Ors. in
case bearing HCP No. 72/2023. He has specifically referred to
Paragraph 15 of the said judgment. The other judgment that has
been relied upon by the learned counsel for the appellant is a
judgment passed by the Hon’ble High Court of Allahabad in
Jitendra vs. Dist. Magistrate bearing Writ Petition No. 432 of
5
LPA No. 114/2024 in
HCP No. 85/2023
2003 (HC). He has specifically referred to Paragraphs 10 and 11 of
the said judgment. We shall deal with the said judgments in due
course.
6. Learned counsel for the Union Territory, on the other hand, has
vehemently opposed any interference by this Court against the
order passed by the learned Single Judge, which the learned counsel
for the respondents submits has been a well considered judgment
and which has been passed after discussing the facts and
circumstances of the case. Our attention has been drawn to
Paragraph 16 of the said judgment, which we shall refer to in due
course.
7. Heard learned counsel for the parties and pursued the
documents along with the appeal and the record of the case.
8. The appellant has been arrested on 05.09.2023 and allegedly Heroin
was recovered from her between 02 to 04gms which constitutes
small quantity. It is undisputed by the Union Territory that she was
granted bail in the said case. The ground of bail has been
considered by the detaining authority in the grounds of detention.
There were two other cases against the appellant in the year 2022
which is also not disputed by the learned counsel for the appellant
which were also under the same provisions of the NDPS Act in
which she was apprehended and from her possession small quantity
of Heroin was recovered. Undisputedly, in those two cases also, the
appellant was granted bail by the learned Trial Court. However, the
same notwithstanding, in the judgment of the detaining authority, it
6
LPA No. 114/2024 in
HCP No. 85/2023
was found necessary to detain the appellant under the stringent
provisions of the PITNDPS Act as she was repeatedly found in
possession of Heroin in three different cases, back to back, within a
period of two years. Thus, there was a reasonable apprehension that
arose that the appellant may not have been merely a consumer of
the drugs but was deliberately carrying small quantities of Heroin in
order to ensure that she would get the benefit of a bail order in her
favour in the event she was apprehended.
9. In this regard, in Paragraph 16 of the judgment passed by the
learned Single Judge, it has been taken into account that the
appellant was indulging in illicit trafficking of drugs but carrying
the same in small quantity so that bail would be therefore the
asking, if she ever caught and the rigors of Section 37 of the NDPS
Act would not apply. Here also, it has never been stated by the
appellant that she was a user of the said drug and was a drug addict.
Under the circumstances, the apprehension of the Detaining
Authority that the appellant may be indulging in a drug trade
appears to be reasonable.
10. The next contention of the learned counsel for the appellant that the
finding of the learned Single Judge in Paragraph 19 is defective
where the learned Single Judge has held that the failure of the State
to move an application before the learned Court below for
cancellation of bail granted to the appellant would have been futile
and not be yielded any result, which the learned counsel for the
appellant says was speculative as it was for the learned court below,
7
LPA No. 114/2024 in
HCP No. 85/2023
to decide whether any such application for cancellation of bail
ought to be granted or not. This Court is of the considered opinion
that the observation/finding of the learned Single Judge cannot be
faulted as, the law relating to cancellation of bail has crystallized
over a long period of time. The benefit of bail once granted can be
cancelled by the same court that has granted the bail only where the
conditions of the bail have been violated. In other words, if the
conditions laid down by the learned Court below at the time of
granting bail have not been violated by the recipient of the bail, the
court that granted bail could not have cancelled it. The Superior
Court can cancel the bail on the additional ground that the order
granting bail was out rightly perverse and ought not to have been
granted and ground of such bail would detrimentally effect the
ongoing investigation or that the bail order was passed without
taking material on record into consideration.
11. Thus, the finding of the learned Single Judge in Paragraph 19 of the
impugned order cannot be faulted, as moving an application for
cancellation of bail is not something that can be resorted to in
routine. There has to be ample grounds for moving an application
for cancellation of bail and it is also the discretion of the police as
the prosecuting authority, whether such an application should be
moved.
12. As regards the judgments which have been referred and relied upon
by the learned counsel for the appellant, the judgment passed by the
learned Single Judge in Sheela Devi @ Sheelo (supra) with specific
8
LPA No. 114/2024 in
HCP No. 85/2023
reference to Paragraph 15 would not apply in the facts and
circumstances of the present case, as in
Sheela Devi @ Sheelo’s
case, the learned Single Judge held that there was no receipt of the
documents, as in that case, some of the documents that were
supplied to the detenue were blank and legible copies of the same
were not furnished to the detenue. In the present case, there is no
such ground taken.
13. As far as, the judgment of Allahabad High Court in Jitendra
(supra) is concerned, the Court held that the order of detention was
vitiated as the detenu s right to make a representation to the
’
Detaining Authority was only available to him till the approval of
the detention order by the Government. Whenever a judgment has
to be examined as a precedent in the backdrop of the facts and
circumstances of that case.
14. In this case, the undisputed fact is that the appellant has never
moved a representation till date either before the District Magistrate
or the Government. Merely because there was a failure of the
Detaining Authority to inform the detenue that her representation
before the detaining authority ought to be made within a time frame
before the approval of the order of detention by the Government,
rendering the detaining authority functus-officio, cannot be applied
pedantically. It could have been considered by this Court had the
appellant made a representation before the Detaining Authority
which disclosed its inability to consider the same on account of
having become the functus-officio, as the Government had already
9
LPA No. 114/2024 in
HCP No. 85/2023
approved the order of detention before the presentation of the
representation before the Detaining Authority. In such a case, this
Court may have been persuaded to take the view that there is
prejudice caused to the detenue, as one available forum for being
heard was lost. However, that is the not the case in the present
appeal, as the undisputed fact is that no representation was ever
made and has not been made till date by the appellant.
15. In view of what has been argued and considered, we find no reason
to interfere with the order passed by the learned Single Judge and
accordingly, this appeal is dismissed along with connected
application(s), if any.
16. Interim direction, if any, shall stand vacated.
(Sanjay Dhar) (Atul Sreedharan)
Judge Judge
JAMMU
30.09.2024
Manan
Whether the order is speaking : Yes
Whether the order is reportable : No
Manan Mahajan
2024.10.15 15:06
I attest to the accuracy and
integrity of this document