GOWHER AHMAD NAJAR Vs. UT OF J&K

JUDGEMENT

(1.) Gowhar Ahmad Najar son of Farooq Ahmad Najar resident of Pinglen (for short "detenu") has been, vide order No.DIVCOM- "K"/194/2022 dtd. 15/2/2022, issued by Divisional Commissioner, Kashmir - respondent no.2 here (for brevity "detaining authority") placed under detention and lodged in Central Jail Kote Bhalwal, Jammu. It is this order that has been thrown to challenge in instant petition.

(2.) The case set up in the petition is that the detenu was summoned to Police Station Pulwama in connection with FIR No.302/2021, for the commission of offences punishable under Sec. 8/21, 22 Narcotic Drugs and Psychotropic Substances Act, (for short NDPS Act), where he was detained illegally and then shifted to Central Jail Kotebalwal, Jammu to be detained under the provisions NDPS Act, in terms of the impugned order. It is maintained in the petition that the grounds of detention as formulated by the Divisional Commissioner, Kashmir have been incorporated in the dossier, prepared by the SSP Pulwama which ipso facto demonstrate complete non-application of mind on part of the Detaining Authority and that no compelling reasons have been assigned in the detention order. The detenu is stated to have been falsely implicated in the aforementioned FIR, when the detenu has no connection with the allegations levelled therein. The detention order has been proposed on 1/11/2021 and has been actually passed on 15/2/2022 that is after more than three months from the last alleged activity and during these three months the detenue was in the custody of the police, the proximity of the detention order with the alleged apprehension more particularly given the fact that the detenue was in police custody during the period of this delay and no fresh activity has been attributed to him which would warrant to nurture the apprehension as mentioned in the grounds of detention order. It is further stated that the relevant material has not been furnished to the detenue so as to enable him to make an effective representation. The material which has been furnished to the detenue is not sufficient for making the effective representation. Therefore, the constitutional rights guaranteed to the detenue stand infringed and for that reason also the detention of the detenue is legally bad and liable to be set aside.

(3.) Learned counsel for respondents filed the counter affidavit and has resisted the petition on the ground that detention order has been passed in exercise of powers vested with Detaining Authority in terms of sec. 3 of NDPS Act, with a view to prevent detenu from indulging in illegal trade of illicit traffic in narcotic drugs and psychotropic substance. It is insisted that drug trafficking poses a great threat to the society for the reason that proceeds of drug sale can be utilized for financing of other criminal activities and that detenue has made the life of peace loving citizens of Pulwama miserable. It is further stated that consignment seized from detenu's possession shows that detenu is fully involved in illegal trade with conscious mind, working in an organized manner, is a threat for sustaining moral values of the society, and in the welfare of young generation in the union territory of Jammu and Kashmir. It is further stated that the detention order does not suffer from any malice or legal infirmity, inasmuch as, the safeguards provided under the Constitution have been followed while ordering the detention of the detenue, as such, challenge thrown to the impugned order of detention is not sustainable. The basis of detention is the satisfaction of the Executive of a reasonable probability of likelihood of detenue acting in a manner similar to his past acts and preventing him by detention from doing the same.