Zubair Ahmad Pandith v. Union Territory of J and K and Another. (Home Department)

JUDGMENT

¶1Heard learned counsel for the petitioner and perused the pleadings.

¶2The petitioner who is twenty five years old has approached this Court with the present writ petition filed through his mother for seeking quashment of Order no. DIVCOM- 'K'/55/2023 dated 10.05.2023 passed by the respondent

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no. 2-Divisional Commissioner, Kashmir thereby subjecting the petitioner to suffer preventive detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (in short, 'Act of 1988').

¶3The preventive detention of the petitioner was solicited by the Senior Superintendent of Police (SSP), Baramulla, by submitting a case in the form of a dossier no. LGL/PIT-NDPS/2023/961-64 dated 15.04.2023, who reckoned the petitioner's personal liberty to be detrimental in the eyes of law warranting his curtailment so as to prevent the petitioner from committing any of the acts within the meaning of the Act of 1988.

¶4The aforesaid dossier so submitted by the Senior Superintendent of Police (SSP), Baramulla was able to convince the respondent no. 2-Divisional Commissioner, Kashmir that there are grounds for subjecting the petitioner to suffer preventive detention and accordingly the grounds of detention came to be formulated by the respondent no. 2-Divisional Commissioner, Kashmir in which the petitioner was found to be involved in FIR no. 23/2023 under section 8/21-29 of the Narcotic Drugs and

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Psychotropic Substances Act, 1985. The said FIR being registered by the Police Station, Sheeri and the alleged contraband involved in the said FIR being Heroin.

¶5From this involvement of the petitioner in the aforesaid FIR, the petitioner was read to be clandestinely dealing in illegal business of narcotics exploiting the immature minds of the younger generation by making them drug addicts and in return the petitioner earned hefty income.

¶6In the grounds of detention so formulated for enabling the respondent no. 2-Divisional Commissioner, Kashmir to order the detainment of the petitioner under section 3 of the Act of 1988, there is no reference found with respect to the investigation status of the aforesaid FIR and also as to whether the petitioner was suffering custody qua the aforesaid FIR or was on bail or discharged meaning thereby the Senior Superintendent of Police (SSP), Baramulla, in his dossier, was deficient and amiss in apprising the respondent no. 2-Divisional Commissioner, Kashmir about the full state of facts concerning the petitioner in being notified to the respondent no. 2-Divisional Commissioner, Kashmir.

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¶7The petitioner from his end has annexed a copy of the order dated 09.05.2023 whereby the petitioner came to be admitted to bail with respect to FIR no. 23/2023 meaning thereby before the framing of the dossier by the Senior Superintendent of Police (SSP), Baramulla, the petitioner was already enlarged on bail with respect to FIR no. 23/2023 and still this aspect was allowed to go unnoticed and unmentioned for the notice of the respondent no. 2-Divisional Commissioner, Kashmir.

¶8From the counter affidavit dated 10.10.2023 filed in the case from the respondent no. 2-Divisional Commissioner, Kashmir's end, the fact is missing the mention about the status of the aforesaid FIR in terms of the investigation and also about the bail so granted in favour of the petitioner by the court of First Additional Sessions Judge, Baramulla.

¶9Thus, at the time of framing of the dossier by the Senior Superintendent of Police (SSP), Baramulla followed by formation of grounds of detention leading to issuance of order of detention and filing of counter affidavit to the present writ petition, the status of investigation qua the aforesaid FIR and grant of bail in favour of the petitioner

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have been screened from the notice of the respondent no. 2-Divisional Commissioner, Kashmir and that sets in a serious flaw with respect to the preventive detention of the petitioner which leads this Court with no other impression than to see as if the petitioner is being handed over a punitive detainment before his trial's end with respect to the aforesaid FIR by none other than the Law and Enforcement Agency as well the respondent no. 2-Divisional Commissioner, Kashmir. This is not the nature of preventive detention jurisdiction envisaged under the Constitution of India. Punitive detention under rule of law can only follow upon a conviction of an accused person whereas preventive detention is not to be served as a replacement for punitive detention against an accused person.

¶10Therefore, this Court holds the preventive detention of the petitioner effected vide Order no. DIVCOM-'K'/55/2023 dated 10.05.2023 passed by the respondent no. 2-Divisional Commissioner, Kashmir as illegal warranting quashment.

¶11Accordingly, this writ petition is allowed. Preventive detention Order no. DIVCOM-'K'/55/2023 dated

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10.05.2023 passed by the respondent no. 2-Divisional Commissioner, Kashmir whereby the petitioner has been subjected to preventive detention is hereby quashed as a consequence whereof the petitioner is ordered to be restored to its personal liberty by the Superintendent, Central Jail, Kot Bhalwal Jammu.

¶12Disposed of accordingly.

(Rahul Bharti) Judge SRINAGAR

20.12.2023

Naresh, Secy.

Whether the order is speaking:

Whether the order is reportable:

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 10.11.2023 Pronounced on : 20.12.2023 Case No. WP(Crl) no. 189/2023 Zubair Ahmad Pandith (Aged 25 years) S/o Mohd. Hayat Pandith R/o Gantmulla, Payeen District Baramulla. Through his mother Rubina Begum …..Petitioner(s) Through: Mr. N.H. Shah, Sr. Advocate with Ms. Suwaiba, Advocate. Vs 1. UT of J&K through Additional Chief Secretary, Home Department, J&K Govt. Civil Sectt. Srinagar/Jammu. 2. Divisional Commissioner Kashmir. .…. Respondent(s) Through: Mr. Sajad Ashraf, GA Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE