[PITNDPS Act] Multiple Cases Registered For Repeatedly Trafficking Small Quantities Of Illegal Contraband Justifies Detention: J&K High Court

In dismissing a habeas corpus plea of an alleged habitual offender Justice Sanjeev Kumar observed,

“Registration of five cases in a row and the propensity of the petitioner to repeatedly indulge in illicit traffic of small quantity of a contraband which fetches highest price in international market was material good enough to invoke PITNDPS”.

Gulcharan Singh, who was detained under the PITNDPS Act involved him being caught with small amounts of heroin and other drugs on five different occasions. While he was granted bail in each instance, the authorities argued that the repetitive nature of these offenses pointed towards a deeper problem - Singh's propensity for indulging in the illicit drug trade and hence his preventive detention under the Act.

Singh, through his counsel Mr. Gagan Oswal, contested the detention order on several grounds alleging a violation of procedural safeguards and constitutional rights and a lack of application of mind by the Detaining Authority. He further pointed towards the non-disclosure of the material relied upon by the respondents and argued that ordinary legal proceedings were sufficient to address Singh's offences.

Representing the government, Mr. Amit Gupta, Additional Advocate General, defended the detention order, emphasizing Singh's persistent involvement in drug trafficking despite multiple arrests and bails. The government contended that preventive detention was necessary to curb Singh's activities and protect public health and safety.

Disagreeing with Singh's arguments the court acknowledged his ability to secure bail in each case might be due to the smaller quantities involved. However, the court placed significant weight on the fact that Singh had been caught engaging in drug trafficking on multiple occasions.

This repetitive pattern, the court observed, clearly demonstrated Singh's "propensity" for the crime and recorded,

“The Detaining Authority was well aware about the propensity of the petitioner to engage in illicit traffic of drugs and narcotics, which was well exhibited by his conduct of indulging in illicit traffic every time he came out on bail”.

Clarifying that law enforcement agencies can utilize the PITNDPS Act to address situations where individuals exploit loopholes in the NDPS Act's bail provisions the bench emphasised that a history of repeated offenses, even for smaller quantities of drugs, can be grounds for preventive detention under the PITNDPS Act, especially when it suggests a deliberate attempt to circumvent stricter legal consequences.

“It is writ large from the record that the petitioner has been indulging in illicit traffic of illicit drugs very cleverly. He has been trafficking illicit drugs in small quantity so that he could easily obtain bail from the Court without being caught by the rigors of Section 37 of the NDPS Act. In such situation, challenge to the bail granted by the Court to the petitioner in respect of either a small quantity or an intermediate quantity of illicit drug would have been a futile exercise.”, the bench reasoned.

Commenting on the failure of the prosecution for not having applied for cancellation of bail Justice Kumar said that in the given facts and circumstances, this omission on part of the police would not vitiate the detention and added,

“in the instant case where the petitioner had been very smartly indulging in trafficking of heroin of small quantity and the rigors of Section 37 of NDPC were not attracted, an application for cancellation of bail or for that matter filing of appeal or revision would have been an exercise in futility”.

In dismissing the petition, the court thus affirmed the legality of Singh's detention.

Case Title: Gulcharan Singh Vs UT of J&K

Citation: 2024 LiveLaw (JKL)

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