Mohd. Maqbool Th. Kalseem Akhter v. UT of J&K & Ors.

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

1. The petitioner has filed the present petition through his wife for quashing JUDGMENT the order of detention bearing No. PITNDPS 40 of 2022 dated 09.12.2022 passed by the respondent No. 2 by virtue of which the petitioner has been detained under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short “the Act”).

2. The petitioner has impugned the order of detention on the ground that the material relied upon by the respondent No. 2 while passing the order of detention has not been provided to the petitioner, which deprived the petitioner to make an effective representation against his detention under the Act. It is also urged that the copy of the dossier too has not been provided to the petitioner. Besides, it is also stated that the order of detention suffers from the vice of non-application of mind on part of respondent No. 2.

3. Response stands filed by the respondent No. 2 wherein it has been stated that the SSP, Rajouri submitted a dossier thereby recommending the 2 WP(Crl) No. 91/2022 detention of the petitioner under the Act and after the careful perusal of dossier and FIRs as well as the confidential report submitted by the District Special Branch (DSB) Rajouri dated 22.11.2022, the order of detention has been issued against the petitioner. It is further stated that the executing officer has provided relevant documents along with detention order, grounds of detention to the petitioner and has also explained the petitioner the contents of the order of detention and the grounds of detention in Urdu/Pahari language which the petitioner fully understands and in acknowledgment thereof, he has also signed the execution report. It is further averred that the order issued by the respondent No. 2 has been confirmed by the Government vide order dated 27.12.2022.

4. Mr. Ahsan Mirza, learned counsel for the petitioner submits that whole of the material relied upon by the detaining authority has not been provided to the petitioner, as such, order of detention is required to be quashed. He further submits that the last illegal activity attributed to the petitioner is in respect of FIR No. 556/2020, which was registered on 20.10.2020 whereas the order of detention has been passed on 09.12.2022, as such, there is delay in passing the order of detention.

5. Per contra, Mr. Bhanu Jasrotia, learned counsel for the respondents submits that all the constitutional as well as procedural safeguards have been complied with at the time of issuance as well as execution of the detention order. He further submits that the order of detention has been passed after taking into consideration the illicit activities of the petitioner.

6. Heard and perused the record. 3 WP(Crl) No. 91/2022

7. A perusal of the grounds of detention reveal that the respondent No. 2 has placed reliance upon the FIR No. 154/2020 dated 20.03.2020 registered with Police Station, Rajouri for commission of offence under Section 8(A) NDPS Act and FIR No. 556/2020 dated 20.10.2020 registered with Police Station Rajouri for commission of offence under Section 8(A)/20/16 NDPS Act. Besides, respondent No. 2 has also placed reliance upon the confidential report of DSB Rajouri dated 22.11.2022. In FIR No. 154/2020, the allegations are in respect of recovery of 50-60 grams of Charas from the possession of the petitioner. In FIR No. 556/2020,the allegations are that 500 grams of charas like substance was recovered from the vehicle bearing registration No. JK02AK-0692, however, the petitioner escaped from the spot. In both these FIRs, the petitioner has been enlarged on bail by the court of learned JMIC Kotranka and Principal Sessions Judge, Rajouri vide orders dated 06.04.2020 and

02.07.2022 respectively. A perusal of the confidential report of DSB Rajouri dated 22.11.2022 reveals that In-charge, District Rajouri Special Branch, Rajouri has written to the SSP District Rajouri that the petitioner is engaged in the business of sale and purchase of narcotic substance and has been found in possession of narcotic substance time and again. The communication dated 22.11.2022 is vague, bereft of necessary details in respect of date and month of alleged illegal activities of the petitioner. In view of the record relied upon by the respondent No. 2 for the purpose of detaining the petitioner, as it reflects that the last illegal activity attributed to the petitioner is in respect of FIR No. 556/2020 dated 20.10.2020, whereas the order of detention has been passed on 09.12.2022, meaning 4 WP(Crl) No. 91/2022 thereby that there is gap of almost two years in passing the order of detention. Delay in passing the order of detention has snapped the proximity between the alleged activity and the purpose of the detention order. On this ground only, the detention order is required to be quashed. Reliance is placed upon decision of Hon’ble the Apex court in case titled, Saeed Zakir Hussain Malik vs State of Maharashtra, (2012) 8 SCC

233. The relevant paragraph Nos. 27 and 28 are reproduced as under: is snapped depends on "27) As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the the facts and purpose of detention circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned. 28) It is also the duty of the court to investigate whether casual connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on detenue, there is no need to go into the factual details."

8. Further a perusal of the receipt of detention warrant reveals that total five leaves have been provided to the petitioner at the time of execution of detention warrant and these five leaves comprise of copy of detention order (1 leaf) and grounds of detention (4 leaves) whereas there are only two leaves of grounds of detention in the present case. Further, the dossier comprising of five pages has not been provided to the petitioner. This too vitiates the detention order. It is settled law that all the 5 WP(Crl) No. 91/2022 documents relied upon by the detaining authority must be provided to the petitioner so as to enable him to make an effective representation and if the same are not supplied, then the order of detention is required to be quashed. Reliance is placed upon the decision of Apex Court in Thahira Haris V. Govt. of Karnataka reported in (2009) 11 SCC 438 and the relevant para is reproduced as under: “30. Our Constitution provides adequate safeguards under clause (5) and (6) of Article 22 to the detenue who has been detained in pursuance of the order made under any law providing for preventive detention. He has the right to be supplied with copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the ground of detention is to enable the detenue at the earlier opportunity to make effective and meaningful representation against the detention.”

9. In view of what has been discussed above, this Court is of the considered view that the impugned order of detention bearing No. PITNDPS 40 of 2022 dated 09.12.2022 passed by the respondent No. 2 by virtue of which the petitioner has been detained under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 is required to be quashed. Ordered accordingly.

10. The petitioner be released forthwith, if he is not required in any other case. Record be returned to the learned counsel appearing for the respondents. Jammu 01.09.2023 Sahil Padha (RAJNESH OSWAL) JUDGE Whether the order is speaking: Whether the order is reportable: Yes/No. Yes/No.