jammu and kashmir and ladakh high court

Jammu and Kashmir and Ladakh High Court: While considering the instant petition wherein the petitioner challenged the order detaining him under Section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 on the ground that the impugned order was vague, suffers from non-application of mind etc., the bench of Rajnesh Oswal, J.*, quashed the impugned order for being unsustainable in law stating that the live link between petitioner’s illicit activities has been snapped and the Daily Diary Reports (DDRs) presented before the Court contained vague and bereft of necessary details in respect of the specific activities of the petitioner. The Court reiterated its coordinate bench decision in Krishan Lal v. State (UT of J&K), 2023 SCC OnLine J&K 204 wherein it was held that, “The daily diary reports being vague and bereft of details of the activities of the petitioner which necessitated the issuance of the detention order, could not have been relied upon by the detaining authority (…) The issuance of the order of detention on vague grounds deprives the detenue of his right to make effective representation against the order of the detention and if the detention order is passed on vague grounds then the constitutional right of making representation against the detention order, as envisaged by article 22(5) of the Constitution of India would become a Mirage”.

As per the respondents, detention order dated 28-12-2022 was issued against the petitioner as three FIRs in drug trafficking cases had been registered against him, two in Police Stations- Udhampur and Rehambal. Besides these FIRs, two entries were made in the Daily Diary of the Police Station, Udhampur due to repeated involvement of the petitioner in drug trafficking. Taking into consideration the activities of the petitioner, he was ordered to be detained under the Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 as his activities were posing serious threat to the health and welfare of the people of Udhampur and other adjoining areas.

Perusing the facts of the case, the Court noted that in FIR registered in Udhampur, the petitioner was enlarged on bail. The last FIR which was registered against the petitioner on 14.09.2021 with Police Station, Rehambal. Thereafter, no illegal activity of indulging in trafficking of narcotics and drugs was attributed to the petitioner, though two entries were made in the Daily Diary of Police Station, Udhampur.

The Court further pointed out that the order of detention impugned in the instant petition is of 28-12-2022, meaning thereby that there is a gap of one year and three months between the last illegal activity attributed to the petitioner and the detention order. This gap of one year and three months has snapped the live link between the alleged illicit activities of the petitioner and the purpose of detention order. The Single Judge Bench reiterated Supreme Court’s decision in Saeed Zakir Hussain Malik vs. State of Maharashtra, (2012) 8 SCC 233 wherein the Court had stated that, “Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned”.

Perusing the details stated in the Daily Diary Reports, the Court pointed out that these reports lacked any necessary details vis-à-vis petitioner’s criminal activities. Therefore, the impugned order was quashed, and the Court directed the respondents to release the petitioner if he is not required in any other case.

[Kewal Krishnan v. Finance Commissioner ACS Home Department, 2023 SCC OnLine J&K 941, decided on 10-11-2023]

*Judgment by Justice Rajnesh Oswal

Advocates who appeared in this case :

Petitioner- Rajnesh Singh Parihar, Advocate

Respondent- Dewakar Sharma, Dy. AG

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