Jammu & Kashmir and Ladakh High Court: In the present petition, the petitioner (‘detenue’) challenged a detention order passed by the Divisional Commissioner, Jammu (‘Detaining Authority’), under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988 (‘PIT NDPS Act’), alleging it to be in breach of the provisions of Article 22(5) of the Constitution and the PIT NDPS Act. A Single Judge Bench of M.A. Chowdhary, J., upheld the detention order, observing that the detenue was a habitual recidivist and that the decision to detain an individual was not based on how many acts they had committed, but rather on the impact of the act.
Background:
The Detaining Authority, in exercise of powers under Section 3 of the PIT NDPS Act read with SRO 247 of 1998 dated 27-07-1998, passed the detention order dated 06-11-2024 against the detenue. The detenue asserted that the detention order was illegal and arbitrary as the translated version of documents were not communicated to him; that his representation filed on 09-12-2024 was not considered; that in all the five FIRs lodged against him, he was on bail in all the cases; that earlier also, detenue was detained under PIT NDPS Act on the basis of nine FIRs, and this time, four previous FIRs were again made the basis for passing the impugned detention order; that the detaining authority did not mention anything regarding the satisfaction drawn by it as to how it came to the conclusion of passing the detention order. The detenue stated that he was never involved in the commission of any offence under the NDPS Act but the Detaining Authority, without the application of mind and without considering the material-on-record, issued and passed the impugned detention order, which was illegal, unjustified, unwarranted under law and, as such, the same was liable to be quashed.
However, the respondents contended that the detenue was a habitual drug peddler involved in the possession and transportation of Narcotic Drugs and Psychotropic Substances; that the detenue was ordered to be detained under the provisions of PIT NDPS Act and if he was let free, there would be every likelihood of his re-indulging in criminal activities. The detenue’s representation to the Principal Secretary, Home Department for revocation of the detention order was considered and was found imperative to detain the detenue. It was stated that the detenue after getting bail was again involved in the illicit trafficking of narcotic drugs and was posing grave threat to the public order as well as to the health and welfare of the people and that the ordinary law had failed to deter as was evident from the detenue’s conduct.
The respondents submitted that the detention was well founded and was in conformity with the principles as enshrined under Article 22(5) of the Constitution read with the provisions of the PIT NDPS Act. However, the detenue’s counsel alleged that Detaining Authority had not mentioned in the detention order that the detenue had a right to make representation against the order and had supplied the illegible copies of the documents/FIRs and material relied upon, so that the detenue, who was an illiterate person, was prevented in making effective and meaningful representation and therefore, the detention order was liable to be quashed.
Analysis and Decision:
The Court opined that the right of personal liberty was the most precious right guaranteed under the Constitution. It was held to be transcendental, inalienable and available to a person. The Court referred to Maneka Gandhi v. Union of India, (1978) 1 SCC 248, wherein it was observed that a person was not to be deprived of his or her personal liberty except in accordance with procedures established under law and the procedure was to be just, fair and reasonable.
The Court highlighted that where a person was facing trial on a criminal charge and was temporarily deprived of his personal liberty, he had an opportunity to defend himself and to be acquitted of the charges in case the prosecution failed to bring home his guilt. Where such a person was convicted of the offence, he still had the satisfaction of being given an adequate opportunity to contest the charge and adduce evidence in his defence.
The Court observed that Article 22(5) of the Constitution permitted preventive detention without formal charges or trial, recognizing the need to save the society from individuals whose actions could threaten the right to life and personal liberty of many people. Article 22(5), thus, allowed the State to take preventive steps against those suspected of planning harmful activities. The framers of the Constitution, therefore, intentionally created a space for preventive detention laws to protect the larger public interest.
The Court referred to Haradhan Saha v. State of W.B., (1975) 3 SCC 198, where the Supreme Court pointed out the difference between preventive and punitive detention and held that “the essential concept of preventive detention was that the detention of a person was not to punish him for something he had done but to prevent him from doing it. In punitive detention, a person was punished to prove his guilt, and the standard was proof beyond reasonable doubt, whereas in preventive detention a man was prevented from doing something which was necessary to prevent”.
The Court relied on Khudiram Das v. State of W.B., (1975) 2 SCC 81, where it was observed that “the power of detention was clearly a preventive measure. It did not partake in any manner of the nature of punishment and was taken by way of precaution to prevent mischief to the community”. The Court referred in Naresh Kumar Goyal v. Union of India, (2005) 8 SCC 276, wherein it was held that “it was trite law that an order of detention was not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc.”.
The Court noted that the detenue’s involvement in various criminal cases appeared to have heavily weighed with the Detaining Authority while passing the detention order and that he, on earlier occasion also, was taken into preventive detention and yet after his release, he was found involved in another case, which showed that he was a habitual recidivist. The Court also noted that the detenue was well informed about the grounds of the order as well as his rights and was provided with all the relevant documents. The detaining authority had narrated facts and figures that made it exercise its powers under Section 3 of the PIT NDPS Act and record subjective satisfaction that the detenue was required to be placed under preventive detention to prevent him from committing any of the acts within the meaning of illicit traffic.
The Court opined that the drug problem was a serious threat to public health, economy and growth of humanity. It distorted the health and fabric of society and was the originator of petty offences as well as heinous crimes. The involvement of various terrorist groups and syndicates in drug trafficking threatened the national security and sovereignty of States via narco-terrorism. Due to India’s proximity with the major opium growing areas of the region, it was facing serious menace of drug trafficking and as a spill-over effect, drug abuse especially among the youth was a matter of concern.
The Court observed that it was not the number of acts that were to be determined for detention of an individual, but it was the impact of the act which was material and determinative. The detenue could not convincingly point out the violation of any statutory or constitutional provisions. Consequently, the Court, while dismissing the petition, upheld the preventive detention of the detenue.
[Mohd. Shakoor v. State (UT of J&K), 2025 SCC OnLine J&K 831, decided on 19-08-2025]
Advocates who appeared in this case:
For the Petitioner: Idrees Saleem Dar, Advocate.
For the Respondents: Monika Kohli, Sr. AAG.
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