Sudesh Mehta Vs U T of J and K Th Principal Secretary Home Deptt and Others

The petitioner has challenged the legality, propriety and correctness of impugned detention order No. PITNDPS 41 of 2023 dated 22.09.2023, passed by the Divisional Commissioner, Jammu under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1998 read with SRO 247 dated 27.07.1988, has been assailed by the detenue (petitioner herein).

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The Divisional Commissioner, Jammu, has detained Sudesh Mehta, S/o Parkash Chand, R/o Chapper Morh, Tehsil Hiranagar, District Kathua, under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 read with SRO 247 dated 27.07.1988 to prevent him from committing any act within the meaning of illicit trafficking.

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The detention of the detenue has been ordered on the ground of his repeated and continuous involvement in criminal as well sale and

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purchase of Narcotic Drugs and Psychotropic Substance which poses a serious threat to the health and welfare of the people.

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As per the dossier of the Sr. Superintendent of Police, Kathua, the detenue was involved in two FIRs, i.e., FIR No. 22/2017 registered u/s 8/20 NDPS Act at Police Station, Hiranagar, and FIR No. 42/2023 registered u/s 8/20 of NDPS Act registered at Police Station, Hiranagar. The Detaining Authority, after considering the dossier of activities submitted by the Police, has arrived at its subjective satisfaction to prevent the detenue from further committing any offences and accordingly issued the order of detention. 05. The detenue has assailed the impugned order of detention on the ground that; (a) a bare perusal of the impugned order and the grounds of detention reveals that no fresh incident regarding the detenue’s involvement in any unlawful activities has been reported in any police station but despite this, respondent No. 2 issued the impugned order based on an incomplete report submitted by respondent No. 3, leading to the detenue’s detention. Respondent No. 3 failed to report that the detenue has not been involved in any unlawful activities since May 2023, which shows that the order was issued on incomplete information, thus, deserving to be quashed; (b) though the grounds of detention mention that the detenue was booked under the NDPS Act in two FIRs, i.e., FIR No. 22/2017 and FIR No. 42/2023, but it is not-mentioned in the grounds that the detenue was admitted to bail in both these FIRs, therefore, the detention order cannot justify his detention; (c) the detenue has not been provided with copies of the FIRs, charge sheets, or other relevant records that were relied upon by the Detaining Authority. The detention order and grounds of detention were served with a dossier comprising only 11 pages, and the detenue has

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been deprived of making an effective representation, thus, the detention order deserves to be quashed; (d) the Detaining Authority did not specify the period for which the detenue is detained. The impugned order shows that the detenue has been detained indefinitely, without a clear timeline. This indicates that the order was passed without any application of mind, making it unsustainable in law; (e) the detention order was based only on the dossier prepared by the Superintendent of Police, Kathua, without any application of mind by the Detaining Authority; (f) the detenue’s case was not referred to the Advisory Board, which is a significant procedural illegality; (g) the detenue has studied up to 8^th grade and he does not understand English, yet the detention order was written in hyper-technical language. The order was neither read over to the detenue in a language he understands, nor was a translated script furnished, making the order beyond his comprehension, thus, violating the constitutional as well as procedural safeguards provided to him.

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Mr. Amit Gupta, learned AAG, has filed the counter affidavit as well as produced the relevant record. 07. The respondents submit that the detenue has been detained under the provisions of the PITNDPS Act, 1988, due to his repeated and continuous involvement in the illegal trafficking of narcotic drugs. After carefully examining the dossier supplied by the SSP, Kathua, the Detaining Authority has arrived at a subjective satisfaction to detain the detenue based on his continuous involvement in drug trafficking, which affects the health and welfare of the public.

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It is submitted that after being granted bail, the detenue was again involved in the illegal trafficking of narcotic drugs, posing a serious threat

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to the maintenance of public order, as well as the health and welfare of the people. The ordinary law failed to deter the detenue from his activities, therefore, his detention was necessary.

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It is further submitted by the respondents that all the statutory requirements and constitutional guarantees have been fulfilled and complied with by the Detaining Authority. The impugned order issued is legal and valid and the learned counsel for the respondents has further submitted that the grounds urged in this petition by the detenue are misconceived and untenable being without any merit.

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Heard learned counsel for the parties at length and also perused the record. 11. The Divisional Commissioner, Jammu, ordered the detention of the detenue after relying on the dossier submitted by the SSP, Kathua, on the grounds of continuous and repeated involvement of detenue in criminal activities as well as narcotic substance cases, which have remained unchecked. There was every likelihood that he would expand his illegal trade to other areas, thereby spoiling the youth of the region and creating law and order problems. The Detaining Authority also recorded its satisfaction that the ordinary law of land has failed to deter the detenue from engaging in illegal trafficking, therefore, it was imperative to detain him under the PITNDPS Act, 1988.

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The right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in “Maneka Gandhi vs. Union of India”, 1978 AIR SC 597 , is to be just

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and fair. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment.

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Article 22(5) of the Constitution of India, provided for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object are to save society from activities that are likely to deprive a large number of people of their right to life and personal liberty. 14. It is well settled that the purpose of the preventive detention by detaining of a person is not to punish him for something he has done but to prevent him from doing a particular act which is prejudicial either to the security of the State or to the maintenance of the public order. In “ Haradhan Saha V. State of West Bengal”, (1975) 3 SCC 198 , Hon’ble the Supreme Court has held that there is no parallel between prosecution in a Court of law and a detention order under the Public Safety Act. One is a punitive action and the other is a preventive act. In one, case a person is punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in the Act. The relevant part of the judgment is reproduced as under:-

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“The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The, basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one, case a person is

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punished to prove his guilt and the standard is proof beyond reasonable doubt whereas in preventive detention a man is prevented from doing something which it is necessary for reasons mentioned in section 3 of the Act to prevent.”

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In Khudiram Das V. State of West Bengal and others, (1975) 2 SCR

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832, It was held that:-

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“………..The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof.…………”

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Similarly, in Secretary to Government, Public (Law and order) and another vs. Nabila and another, (2015) 12 SCC 127 , it has been held that one act may not be sufficient to form the requisite satisfaction for detaining him. Relevant portion of the judgment is as under:

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“Indisputably, the object of law of preventive detention is not punitive, but only preventive. In case of preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability and there is no criminal conviction which can only be warranted by legal evidence…”

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The Detaining Authority, after arriving at a satisfaction, has come to the conclusion that the detention of the detenue is necessary. All the material relied upon by the Detaining Authority was provided to the detenue in the language he understands and the detenue also signed the execution report in English, which indicates that he had sufficient knowledge of the English language. Despite having the opportunity, the detenue did not move any representation to the Detaining Authority. The Advisory Board, after considering all the material on record, concluded

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that the detention of the detenue was warranted under the facts and circumstances of the case.

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The detention order does not suffer from any legal infirmity and grounds of detention are free from any ambiguity. The detenue was duly informed what weighed with the Detaining Authority while passing the order of detention. The Detaining Authority arrived at a subjective satisfaction that detenue was required to be placed under preventive detention under the PITDPS Act, 1998.

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In view of the aforesaid, none of the constitutional or statutory grounds available to the detenue have been violated and there is no merit in this petition and the same is, accordingly, dismissed.

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Detention record be returned to the learned counsel for the

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respondents by the Registry forthwith.

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(Sindhu Sharma) Judge

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Srinagar:
14.10.2024
Michal Sharma/PS

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Whether approved for reporting : No

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Michal Sharma 2024.10.15 13:35 I attest to the accuracy and integrity of this document

Sudesh Mehta v. U T of J and K Th Principal Secretary Home Deptt and Others

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Sudesh Mehta v. U T of J and K Th Principal Secretary Home Deptt and Others

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