MEHRAJ AHMAD BHAT Vs. STATE AND OTHERS

JUDGEMENT

(1.) CHALLENGE to order No. Div Com -'K'/PSA -29/2011 dated 20.04.2011, whereby Divisional Commissioner, Kashmir (hereinafter referred to as 'Detaining Authority') has in exercise of powers under Section 3 J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, ordered preventive detention of Shri Mehraj Ahmad Bhat son of Abdul Rehman resident of Reshipora Awantipora District Pulwama (hereinafter called as 'detenue), is destined to succeed for the following reasons:

(2.) The detention order makes mention of material record such as 'dossier and other connected documents' relied upon by the detaining authority while making the detention order. The detention order also makes reference to a communication received from Superintendent of Police, Awantipora. The detention record reveals that none of the documents referred to in the detention order was ever supplied to the detenue. The endorsement on the reverse of the detention order made by the Executing Officer ASI Gh Mohd NGO No. 35 P/S Awantipora, at the time of execution of detention order does not make a reference to the documents in question and does not record that such documents were supplied to detenue at the time of execution of detention order or immediately thereafter. The grounds of detention make reference to case - FIR No. 18 NDPS Act of Police Station Awantipora, to have been registered against the detenue. The involvement of detenue in the aforementioned case appears to have heavily weighed with the detaining authority while making detention order. The record does not indicate that copies of aforementioned First Information Report, statements recorded under section 161 Cr.P.C. and other material collected in connection with investigation of aforesaid case, were ever supplied to detenue. The material, mentioned above, thus assumes significance in the facts and circumstances of the case. It needs no emphasis, that the detenue cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 3(2) of Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, (for short 'Act') unless and until the material on which the detention order is based, is supplied to detenue. It is only after the detenue has all said material available, that the detenue can make an effort to convince detaining authority and thereafter Government, that their apprehension as regards activities of the detenue are baseless and misplaced. If the detenue is not supplied material, on which detention order is based, the detenue cannot be in a position to make an effective representation against his detention order. The failure on the part of detaining authority to supply material relied at the time of making detention order to detenue, renders detention order illegal and unsustainable.

(3.) THE grounds of detention after detailing alleged activities of the detenue over a period of seven years (2004 -2011) and alleging that the detenue indulged in dealing with illegal trade of narcotic drugs, make a pointed reference to case FIR No. 50/2011 Police Station, Awantipora, under Section 18 of NDPS. It is apprehended that with a view to prevent the detenue from further committing any offence under the provisions of illicit trafficking in Narcotic Drugs and Psychotropic Substance Act, the detaining authority felt persuaded to order preventive detention of the detenue. The Detaining Authority failed to appreciate that in view of embargo/restrictions on right to get the bail under Section 37 NDPS Act and the contraband alleged to have been recovered being a commercial quantity (120 Kgs of fuki), there was no likelihood of the detenue being admitted to bail.