Detaining Authority Bound To Record Satisfaction As To Why Detenue Could Not Be Deterred Under Ordinary Criminal Law: J&K&L High Court

Justice Rajesh Sekhri further observed that the detaining authority is duty bound to record satisfaction as to why the detenue could not be deterred from indulging in similar type of activities under the ordinary criminal law of the land.

The observation was made while hearing a plea in terms of which challenge had been thrown to the detention passed by respondents under Section (3) of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.

The petitioner challenged the detention order on the ground that the detenue had already been enlarged on bail in the two FIRs under the NDPS Act, which had prompted the detaining authority to pass the impugned order of detention and hence there arose no reason to detain him under preventive detention in context of the same.

The moot question that arose for the consideration of the bench was as to whether the ordinary law of land was insufficient to deal with the activities attributed to the detenue.

In a bid to answer the same the bench observed that only a couple of criminal activities attributed to the detenue, which took place in the past, cannot be made basis for passing a detention order unless it is established from the detention record that the detenue was continuously indulged in felonious activities of similar nature.

The bench noted that the allegation against the detenue is that he had clandestinely started dealing in illegal business of Narcotics and was supplying drugs against hefty amounts to the immature youth and that the detenue was an active member of a drug mafia.

"In these circumstances, the police agency would have recovered a huge cache of Narcotic Drugs and Psychotropic Substances from the possession of the detenue, particularly of commercial quantity to substantiate the allegations leveled in the dossier prepared by the Superintendent of Police. However, on the contrary, there is nothing in the detention record to suggest that the detenue, at any point of time, after the aforesaid two FIRs was found in possession of the Narcotic drugs to establish that the detenue indulged into continuous felonious activities like drug peddling etc", said the court.

Deliberating further the bench explained that a detention order can be passed before or during the prosecution and even without prosecution and in anticipation or after discharge or even acquittal of a detenue in a criminal case, however there must be compelling reasons for the detaining authority to do so and the detaining authority is duty bound to record satisfaction as to why the detenue could not be deterred from indulging in similar type of activities under the ordinary criminal law of the land.

Gauging the merits of the detention order on the touchstone of the settled position of law the bench observed that there was nothing in the record to suggest the compelling reasons but for the two FIRs, which prompted it to pass the impugned order of detention against the detenue.

"There is nothing to indicate the compelling reasons for the detaining authority to pass the impugned detention order against the detenue and that too, after unexplained delay. Be that as it may, the detenue is already behind the bars for about 09 months and nothing adverse has been reported against him, the court added.

Accordingly the bench allowed the petition and ordered the release of the detenu provided he is not involved in any other case.

Case Title : Iqbal Jaffar Dar Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 213

Counsel For Petitioner : Mr Umar Mir

Counsel For Respondent : Mr Sajad Ashraf GA

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