BARKAT ALI MALIK Vs. UNION TERRITORY OF J&K

JUDGEMENT

(1.) By virtue of Order No. DIVCom"K"/185/2022 dtd. 11/1/2022 (hereinafter called 'impugned order') passed by Divisional Commissioner Kashmir -respondent No.2, the detenue namely Barkat Ali Malik S/O Ghulam Hussain Malik R/O Bundnara (Lahori-check) Narbal Badgam, has been ordered to be detained under Sec. -3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act 1988 (hereinafter called 'the Act'). Aggrieved of the said detention order, detenue, through his brother, has filed the present petition seeking quashment of the same on the grounds taken in the petition in hand.

(2.) Case set up by the petitioner is that the detenue, in terms of the impugned order, has been detained under the Act on false and flimsy grounds without any justification. It is also pleaded that the grounds of detention are vague and mere assertions of the detaining authority and no prudent man can make an effective and meaningful representation against these allegations. Further plea of the detenue is that he has not been provided the material/documents relied upon by the detaining authority so as to make an effective representation before the detaining authority. Further plea of the petitioner is that the detenue was arrested in connection with FIR No. 35/2020 under Sec. 8/22 NDPS Act in the year 2020 but owing to the non-involvement of the detenue in the said FIR, he was admitted to bail by the court of Sessions Judge Budgam on 30/4/2020. The said bail was initially granted upto 28/5/2020 but subsequently vide order dtd. 13/6/2020 the interim bail order dtd. 30/4/2020 was made absolute. It is further submitted that while facing trial in connection with FIR No. 35/2020, the detenue was ordered to be detained under the provisions of NDPS Act vide order impugned. The grounds of detention as formulated by Divisional Commissioner have also been incorporated in the dossier which ipso facto demonstrate complete non-application of mind on the part of the detaining authority and vitiates the detention of the detenue.

(3.) Reply affidavit has been filed by respondents, vehemently resisting the petition. It is contended that the impugned order of detention does not suffer from any malice or legal infirmity, inasmuch as safeguards provided under the Constitution as also the rights of the detenue have been followed while ordering his detention, as such, challenge thrown to the impugned order of detention is not sustainable, hence on this score the instant petition merits dismissal. It is further contended that the detenue has been detained with a view to prevent him from indulging in illegal trade of illicit traffic in Narcotic Drugs and Psychotropic Substance after satisfying that the detenue is a great threat for sustaining the conservative values of the society. The detenue has remained a notorious trafficker of contraband substance like 'cannabis' and is involved in the distribution of the same among the youth of the area. In the instant case there is enough material against the detenue which is highly suggestive of the fact that the normal law of the land is not sufficient to prevent him from continuing with his anti-social activities and, it is evident that the detenue is highly motivated and is not likely to desist from anti-social and unlawful activities.