BRAHAM SINGH Vs. STATE

JUDGEMENT

(1.) CHALLENGE to order No.DivCom-K/05/2011 dated 18.07.2011, 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 Braham Singh son of Foja Singh resident of Surnah Near, Tehsil Pathankote District Gudaspur, Punjab (hereinafter called as detenue), is destined to succeed for the following reasons:

(2.) THE detention order on the face of it does not indicate proper application of mind on part of the Detaining Authority. THE detention order in the present case has been made to prevent the detenue from committing any of the acts within the meaning of illicit traffic and maintenance of public order. A bare look at Section 3 of the Act reveals that the Detaining Authority is empowered to make an order of detention to prevent a person from committing any of the acts within the meaning of illicit traffic as defined in Clause (c) of Section (2). THE detaining authority in the present case by mentioning two distinct terms i.e., illicit traffic as well as maintenance of public order has depicted total non- application of mind. It appears that the detaining authority has not been itself satisfied whether the activities of the detenue were coming within the meaning of illicit traffic or maintenance of public order. It needs no emphasis that illicit traffic and maintenance of public order, are two different concepts that may in a very small number of cases overlap. While Section 3(1) of the Act defines the expression with a view to preventing him from committing any of the acts within the meaning of illicit traffic, the definition of expression maintenance of public order is not given in the Act. THE detaining authority in effect has ordered preventive detention of the detenue on a ground not within the purview of Section 3 of the Act.

(3.) IN Amritlal and others Vs. Union Government (2001) SCC 341), it has been held that where a person already in custody is placed under preventive detention, the detaining authority must, before making such detention order, be satisfied on the basis of available cogent material about likelihood of the detenue being released on bail and in absence of such satisfaction the detention order cannot be passed.