WP(Crl)/732/2022 of JAHANGIR AHMAD DAR Vs UNION TERRITORY OF J AND K AND ORS. (HOME DEPARTMENT) on 30 December 2022

JUDGMENT

1) The petitioner has challenged detention order No.DIVCOM-“K”/279/2022 dated 19.10.2022, issued by respondent No.2, whereby he has been directed to be taken into preventive custody under Section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as “Act of 1988”),

2) It is contended in the petition that the petitioner has been implicated in a false and frivolous FIR bearing No.04/2021 for offences under Section 8/20 of NDPS Act, in which he has already been admitted to bail by the Court of 1[st] Additional Sessions Judge, Srinagar.

It has been further submitted that the petitioner is suffering from ailment of constipation and bleeding.

3) The petitioner has challenged the impugned order of detention on the grounds that the allegations made in the grounds of detention are vague on the basis of which no prudent man can make an effective representation; that if the impugned order of detention is allowed to be executed, the same will result in grave economic crisis to the petitioner as he may loose his job; that no fresh activity has been alleged in the grounds of detention and that the impugned order has been passed in hot haste.

4) The respondents have filed their reply to the petition in which it has been submitted that the petitioner is a hardcore drug peddler who is instigating/motivating immature youth in his area to indulge in drug addiction and drug peddling. It has been further submitted that in view of past conduct of the petitioner, he has immoral and illegal criminal tendencies and for this reason, he has been directed to be taken into preventive custody. It has been further submitted that that the petitioner sells narcotic substances to youth, drivers and college going students and, as such, his activities are required to be curbed

5) I have heard learned counsel for parties and perused the impugned order of detention and the grounds of detention.

6) The impugned order has been assailed at pre-execution stage. As per the law laid down by the Supreme Court in the case of Government of India vs. Alka Subash Gadia, 1992 Sup (1) SCC 496, it is only in five types of instances that the Court may exercise its discretionary jurisdiction under Article 226 at pre-execution stage. These five instances are as under:

(i) that the impugned order is not passed under the Act under, which it is purported to have been passed, under, which it is purported to have been passed,

(ii) that it is sought to be executed against a wrong person, person,

(iii) that it is passed for a wrong purpose,

(iv) that it is passed on vague, extraneous and irrelevant grounds, or grounds, or

(v) that the authority which passed it had no authority to do so, do so,

7) It has been contended by learned counsel for the petitioner that in a later case of Subash Popatlal Dave vs. Union of India and another, (2012) 7 SCC 533, it has been explained that the five examples given in Alka Subash Gadia’s case are only illustrative and not exhaustive and, as such, even on other grounds also, the petitioner can assail the impugned order of detention.

8) There can be no quarrel with the propositin of law laid down by the Supreme Court in Alka Subash Gadia’s case and explained in Subash Popatla Dave’s case that besides the illustrations given in Alka Subash Gadia’s case, there can be certain other cases in which the High Court can interfere with an order of detention at pre-execution stage. In

the instant case, learned counsel for the petitioner has mainly contended that the grounds of detention, on the basis of which the impugned detention order has been passed, are vague, inasmuch as it has not been stated therein as to in what activities the petitioner has indulged after the registration of FIR No.04/2021 for offences under Section 8/20 of NDS Act, in which he is facing trial.

9) If we have a look at the grounds of detention, it has been clearly mentioned that the activities of the petitioner pose serious threat to the health and welfare of the people of the area as he is clandestinely dealing in the business of Narcotics and is exploiting the immature minds of the younger generation by making them dependent on drugs to make them habitual addicts. This information has been gathered by the detaining authority from the field agencies. Having regard to the previous criminal activities of the petitioner, particularly those relating to drug trafficking, in respect whereof he is already facing trial, the apprehension of the detaining authority that the petitioner has a tendency or inclination to indulge in similar activities, cannot be termed as baseless, particularly when the said apprehension of the detaining authority is supported by the reports of the field agencies. Therefore, it cannot be stated that the grounds of detention, on the basis of which the impugned order of detention has been framed, are vague in nature. The contention of learned counsel for the petitioner is, therefore, without any merit.

10) It has been next contended by learned counsel for the petitioner that in spite of petitioner being available at his home and in spite of his participation in trial on each date of hearing, the respondents have not executed the impugned order of detention, which, according to the petitioner, goes on to show that there is no necessity for the respondents to resort to preventive detention of the petitioner.

11) In answer to the aforesaid submission of learned counsel for the petitioner, the respondents have placed on record a communication of Senior Superintendent of Police, Srinagar, addressed to the Divisional Commissioner, Kashmir, wherein it has been clearly indicated that despite strenuous efforts, the police has been unable to nab the petitioner because he is evading arrest and is not available at home.

12) The petitioner has placed on record certified copies of the minutes of the proceedings in respect of the criminal case in which he is facing trial before the Court of Additional Sessions Judge, Srinagar. As per the said minutes of the proceedings, the petitioner has stopped appearing in the case after 25[th] May, 2022, and has been continuously seeking exemption from appearance before the trial court, which clearly goes on to show that the petitioner is not even attending the trial of the case. This confirms the contention of learned counsel for the respondents that the petitioner is evading his arrest.

13) Lastly, it has been contended by learned counsel for the petitioner that the petitioner is suffering from serious ailment and on

this ground alone, the execution of the impugned detention order deserves to be deferred. He has placed on record OPD card issued by Government Medical College, Anantnag. A perusal of the same reveals that the petitioner is suffering from constipation and bleeding.

14) Having regard to the ailment from which the petitioner is suffering, it cannot be stated that his condition is of such a serious nature as would endanger his life if he is taken into preventive custody. The ground urged by the petitioner in this regard is without any merit.

15) For all what has been discussed hereinbefore, I do not find any merit in this petition. The same is, accordingly, dismissed.

(Sanjay Dhar) Judge SRINAGAR 30.12.2022“Bhat Altaf, PS”Whether the order is speaking: Yes/NoWhether the order is reportable: Yes/No