CASE TITLE:
Riyaz Ahmad Mir Vs Union Territory Of J&K&L& Ors
DATE OF ORDER:
25th MAY, 2022
JUDGE(S):
HON’BLE JUSTICE M. A. CHOWDHARY
PARTIES:
PETITIONERS: RIYAZ AHMAD MIR
RESPONDENTS: UNION TERRITORY OF J&K&L & ORS
IMPORTANT PROVISION
Narcotic Drugs and Psychotropic Substances Act, 1988.
SUBJECT
The Jammu and Kashmir and Ladakh High Court recently quashed a preventive detention order against a person who was already facing trial in a similar case and had previously been enlarged on bail by a competent court in the matter. The Divisional Commissioner, Kashmir issued the Detention Order in order to prevent the petitioner from committing any of the acts defined in the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
BRIEF FACTS
- The petitioner in this plea before the court, stated that he had already been detained in the matter under two FIRs filed in 2019 for NDPS Act offences and was facing trial. He then appeared before a competent court, which granted him bail.
- The detention order against him was issued in September 2021, and the detaining authority, despite knowing that the detainee had already been admitted to bail, had not mentioned this important fact on the grounds of detention, according to the petitioner, demonstrating non-application of mind on the part of the detaining authority.
- Alleging lack of application of mind on the part of the detaining authority, the petitioner also claimed that the detaining authority had not prepared the grounds of detention on its own, as is required, but had relied on the police dossier and had not read any supporting material relating to the case.
- Petitioner also claimed that the detaining authority had followed the orders of police authorities and had not inquired about the existence of the facts by reading the supporting material, as such grounds of detention appeared to be a carbon copy of the police dossier.
- The court upheld the petitioner's contention, holding that the fact that the petitioner was already taken into custody in two FIRs for NDPS Act offences and subsequently admitted on bail has been completely left out indicates that either the detaining authority has not applied its mind or the full material relatable to the detainee has not been placed before it. As a result, the court determined that the order of detention was illegal because there was no application of mind.
ANALYSIS BY THE COURT
- In Surya Prakash Sharma v. State of U. P. and others, 1994, the Supreme Court stated, "Preventive detention orders can be passed even when a person is in police custody or involved in a criminal case, but there must be compelling reasons for the detaining authority to do so."
- The bench went on to say in its order that the detaining authority is required to record compelling reasons why the detainee could not be deterred from engaging in subversive activities by using normal law, and that in the absence of these reasons, the detention order becomes unsustainable in law.
CONCLUSION
The court expressed its displeasure with the detention order, noting that the detainee was depicted by the detaining authority as an active member of some drug mafia involved in the illicit traffic of narcotics. Except for the alleged involvement in the aforementioned cases, there is no such record/proof to support such claim. Instead of resorting to preventative law, the court observed that such an occurrence can be addressed by substantive laws on the subject. Allowing the petition, the court quashed the detention order issued by the Divisional Commissioner of Kashmir and ordered the detainee to be released from preventive custody if he is not required in connection with any other case.
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