Rashid Ali Th. Rahim Ali v. UT of J&K & Ors.

Judgment

1. In the instant petition filed under Article 226 of the Constitution, the petitioner herein has sought quashing of detention order bearing No. PITNDPS 50 of 2023 dated 12.10.2023 (for short the ‘Impugned Order’) passed by the respondent 2 herein (for short the ‘Detaining Authority’) under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the ‘Act of 1988’).

The petitioner herein has challenged the impugned order on multiple grounds urged in the petition. In the counter affidavit, which is produced by the counsel for the respondents in the open court, as according to the counsel for the respondents the counter affidavit could not be filed for the reasons beyond control and that a copy of the counter affidavit stands earlier 2 HCP No. 52/2024 CM No. 2075/2024 furnished to the counsel for the petitioner, the respondents herein have opposed the petition on the ground that none of the rights of the petitioner herein, be it legal, statutory or constitutional, have been infringed while detaining him under preventive detention, as according to the respondents, on account of activities of the petitioner for his being involved in possession and trade of drugs, detention of the petitioner herein became imperative, whereupon after having complied with all the statutory and constitutional provisions and guarantees, the detention order came to be passed by the respondent 2/Detaining Authority. Heard learned counsel for the parties and perused the record.

4. Counsel for the petitioner while making his submissions would urge that the petitioner herein had been bailed out by the competent court in the FIRs referred to and relied upon by the Detaining Authority in the impugned order and that the respondents herein instead of challenging the said bail orders took recourse to the preventive detention without indicating compelling reasons thereof. Learned counsel would further contend that the alleged activities attributed to the petitioner herein in the grounds of detention are vague and do not spell out the details and particulars of the persons with whom the petitioner herein have had been involved in the alleged activities relating to narcotic drugs and psychotropic substances. Learned counsel, thus, would insist that the impugned order, as such, is liable to be quashed on these grounds 3 HCP No. 52/2024 CM No. 2075/2024 alone, notwithstanding the other grounds of challenge urged by the petitioner in the petition.

5. On the contrary, counsel for the respondents while opposing the submissions of the counsel for the petitioner would justify the passing of the impugned order passed by the Detaining Authority and in this regard would reiterate the case set up in the counter affidavit filed in response to the petition.

6. Before proceeding to advert to the rival submissions of the appearing counsel for the parties, it is pertinent to note here that the Act of 1988 came to be enacted for detaining a person in order to prevent him from engaging in illicit trafficking of narcotic drugs etc. and also it is significant to mention here that the consistent view, in law, is that a preventive detention is not punitive in nature and is not aimed at to punish a detenue for his activities in the distant past, but is rather to prevent him from carrying out activities which are prejudicial under the Act of 1988.

7. Keeping in mind the aforesaid aim and object of the Act of 1988 and reverting back to the case in hand, perusal of the record would reveal that as per the grounds of detention, the petitioner herein is a notorious criminal/drug paddler engaged in sale and purchase of narcotic drugs and psychotropic substances besides being himself involved in drug consumption also having been found to be trafficking such drugs and luring young generation in such drug related activities. It also gets revealed from the grounds of detention that the petitioner herein on 4 HCP No. 52/2024 CM No. 2075/2024 account of his said drug related activities have had been earlier found to be involved in the commission of offences under Section 8/21/22 of the NDPS Act, 1985 covered under FIR No. 238/2017 registered with Police Station, Rajbagh, wherein the petitioner have had been bailed out after presentation of charge-sheet before the competent court. The grounds of detention further tend to show that the petitioner herein has also been found to be involved in commission of offences under Sections 8/21/22/29 of the NDPS Act, 1985 covered under FIR No. 111/2023 registered with Police Station, Kathua, in which FIR, the charge-sheet have had been also laid and the petitioner herein have had been admitted to bail by the competent court. Record further reveals that on account of involvement of the petitioner herein the aforesaid FIRs coupled with his having been continuously indulged in the drug related activities even after obtaining bail, the Detaining Authority on the basis of the material made available to it by the Sponsoring Agency has passed the impugned order while drawing subjective satisfaction on the basis of the said material that the continuous activities of the petitioner relating to drug trade have been found to be prejudicial under the Act of 1988, as the ordinary law had been found to be not sufficient to deter the petitioner from continuing with the drug related activities.

8. Having regard to the aforesaid facts emanating from the record not having been denied and disputed by the petitioner by filing a rejoinder affidavit, be it in particular, his involvement in the aforesaid FIRs, 5 HCP No. 52/2024 CM No. 2075/2024 notwithstanding of his having been bailed out in the said FIRs, it can safely be concluded that the Detaining Authority had been alive to the drug related activities of the petitioner, the criminal cases the petitioner have had been involved in, inasmuch as the concession of bail extended to him therein the said FIRs, including the material furnished to the Detaining Authority by the Sponsoring Agency in this regard have been found sufficient to order the detention of the detenue under the Act of 1988.

9. In view of the aforesaid position obtaining in the matter, inasmuch as having regard to the detention record produced by the counsel for the respondents, it cannot by any stretch of imagination be said that there were no compelling reason or basis for the Detaining Authority for drawing subjective satisfaction that the detention of the petitioner herein is warranted and imperative on account of his being involved in drug related activities.

11. Viewed thus, what has been considered and analysed hereinabove, the petition is liable to be dismissed. Accordingly, the instant petition along with the connected application is dismissed. Detention record produced by the counsel for the respondents is returned back in the open court. (JAVED IQBAL WANI) JUDGE Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. Jammu 10.09.2024 Sahil Padha Sahil Padha 2024.09.19 13:18 I attest to the accuracy and integrity of this document