TAWQEER BASHIR MAGRAY Vs. UNION TERRITORY OF J&K

JUDGEMENT

(1.) By virtue of Order No. DIVCOM-"K"/21/2023 dtd. 4/3/2023 (for short 'impugned order') passed by Divisional Commissioner Kashmir - respondent No.2, the detenue namely Tawqeer Bashir Magray S/O Late Bashir Ahmad Magray R/O Nowshara Boniyar Baramulla, has been ordered to be detained under Sec. -3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act 1988 (for short 'the Act"). Aggrieved of the said detention order, detenue, through his wife, 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 detaining authority has not followed the constitutional and statutory procedural safeguards while passing the detention order of the detenue; that that order of detention has been passed in breach of the mandate of law as declared by the Supreme Court of India as also the other High Courts of the country; that the detention order passed by Divisional Commissioner, in terms of the Central Act, is not competent to detain a person whereas the competent officer is Secretary to Government or the officer of the rank of Joint Secretary especially empowered in this behalf; 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; that the detenue was arrested in connection with FIR No. 04/2023 under Sec. 8/21 NDPS Act on 30/1/2023 but owing to the non-involvement of the detenue in the said FIR, he was admitted to bail by the court of Sessions Judge Baramulla on 25/2/2023; that while facing trial in connection with FIR No. 04/2023, 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, demonstrates 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 and illicit traffic in Narcotic Drugs and Psychotropic Substances 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.