Bashir Ahmad Bhat vs Union Territory Of J&K And Others

This Appeal is directed against judgement and order dated 1st October 2020, passed by learned Single Judge dismissing writ petition, being WP(Crl)

No.66/2020, titled Bashir Ahmad Bhat v. Union Territory of J&K and another, on the grounds mentioned therein.

Appellant has been placed under detention by Divisional Commissioner Kashmir (respondent no.2) vide Detention Order No.DIVCOM-“Kâ€/

132/ 2020 dated 14th May 2020, with a view to prevent him from committing any of the acts within the meaning of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988. Against the said detention order, appellant preferred a petition (WP(Crl) No.66/2020) before learned Single

Judge, which has been dismissed in terms of impugned judgement and order.

We have heard learned counsel for parties. We have gone through the record on the file and considered the matter.

Learned counsel for appellant has stated that learned Single Judge has not appreciated the contention of appellant that detenu was not provided the

material relied upon by detaining authority to pass detention order.

Such a submission of learned counsel for appellant has no substance in the facts and circumstances of the case, particularly when appellant, on his

own, has admitted supply of important material, viz. FIRs, and appended them with his writ petition as Annexure V&VI. Once, writ

petitioner/appellant has annexed with his writ petition the copies of FIRs, that weighed with detaining authority to issue detention order, there was

and/or is no occasion or reason for respondents to tender any answer as regards non-supply of material relied upon by detaining authority.

Next submission of Mr I. Sofi, learned counsel appearing for appellant, on which much stress has been laid by him, is that copy of dossier has not

been provided to detenu, though copies of FIRs have been provided.

In view of this submission, it would be apt to first of all go through the Dossier, which is available in the detention record, produced by learned counsel

for respondents. For ready reference, pertinent excerpt of dossier is reproduced hereunder:

“The subject was born at his native place Kralpora, Kupwara and is aged about 53 years. In year 1984 subject migrated from Kralpora Kupwara

to Barbarshah, Srinagar and married with daughter of one Sh. Ali Mohammad at Gowkadal in year 1987. Subject is an illiterate person. In initial stage

subject started working as a driver with one Ghulam Mohammad Sofi R/o Maisuma and then purchased his own passenger vehicle (Mazda Bus). The

subject has not house of his own, he was living initially in a shed at Barbarshah Bund.

Thereafter, subject was engaged in cannabis smuggling. Subject alongwith his wife started selling cannabis to local youth. After few years subject and

his wife realised that smuggling of cannabis is not sufficient for them and started dealing with other Narcotic and Psychotropic substances like Brown

sugar and Heroin. Subject was given several warnings, but subject never attempted to mend his ways and activities of indulging in illegal drug trade

and hence with likeminded people is continuing with his activities of drug peddling and involving general public especially youth into drug abuse. The

subject has collected huge wealth, moveable and immoveable from these illegal activities. The activities of subject are not only contravention to law

but are also threat to maintenance of peaceful atmosphere within the area of East Zone Srinagar. In short span of time subject has achieved a

powerful position among his associates with sole aim to destroy youth, for achieving this object subject is exploiting local youth.

Whereas, subject has long history and deep involvement in anti-social activities he first time came into adverse notice of Police in year 2018 while

subject was arrested red handed outside the Valley, on conducting his personal search one polythene containing drugs was recovered from his

possession. The subject was carrying illegal trade of cannabis and drugs to sell them outside Valley. To this effect case FIR No.04/2018 U/S 8/21 and

22 NDPS of P/S Gangyal Jammu was registered against him.

Whereas, after his release from custody subject did not gave up his nefarious activities of selling and indulging in illicit trade of Narcotics. The modus

operandi of subject is that he procures Narcotic from various areas and sells it at a higher price among school going youth/ other prospective drug

addicts. The easy availability of Narcotic and Psychotropic Substances and Intoxicating drugs have made large number of youth addict to such drugs,

with result these addicts are found subsequently indulging in other crimes as well. The subject has developed contacts in and around area of Srinagar

City as well as outside Valley for sale of Narcotic drugs and his role in selling the narcotic drugs has become pivotal, subject has been found involved

in one more case FIR No.05/2020 U/S 8/20 of P/S R.M.Bagh.

Whereas, subject has been arrested in two cases of NDPS Act but after every release, subject again and again adopts same path, and his one and

only intention is to destroy life of youth not only in Valley but other parts outside Valley. This act is being done by subject to gain huge money by using

such an illegal path. The subject has not mended his ways and is continuously running said illegal trade of selling of Illicit Narcotic and Psychotropic,

Intoxicating substances among youth.

Whereas, drug trafficking and drug abuse pose major threat to the mankind in present era, as not only it makes society sick and addict to drugs but

also gives rise to gruesome crimes. The threat posed by drug menace has been nationally and internationally recognized and there is an effort being

made at national and international level to curb this menace. It is pertinent to mention here that drug trade is carried out in a highly discreet and

organized manner and members of these gangs are usually hardened criminals.

In order to stop subject from indulging in illegal trade and to prevent him from affecting health and welfare of society, his detention under provisions of

Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act has become imperative at this stage as the normal law has not

proved sufficient to stop such dreaded drug trafficker from indulging in such illegal activities which are hazardous to human health and society.â€​

Thus, perusal of above quoted Dossier reveals that detenu was born at his native place Kralpora, Kupwara, and is aged about 53 years and he in the

year 1984 migrated from Kralpora, Kupwara, to Barbarshah, Srinagar, where he married daughter of one Sh. Ali Mohammad at Gowkadal in year

1987. Detenu is said to be an illiterate person and initially he had been working as a driver with one Ghulam Mohammad Sofi R/o Maisuma and

thereafter he purchased his own passenger vehicle (Mazda Bus). The detenu is stated to have no house of his own and he was living initially in a shed

at Barbarshah Bund. It is also mentioned in the dossier that the detenu was initially engaged in cannabis smuggling along with his wife. However, after

few years detenu and his wife are stated to have started dealing with other Narcotic and Psychotropic substances like Brown sugar and Heroin. It is

also mentioned in the dossier that detenu was given several warnings, but he never attempted to mend his ways and activities of indulging in illegal

drug trade and hence with likeminded people is continuing with his activities of drug peddling and involving general public especially youth into drug

abuse. The detenu is said to have collected huge wealth, moveable and immoveable from these illegal activities. His activities are said to be a threat to

maintenance of peaceful atmosphere within the area of East Zone Srinagar. The detenu, it is further mentioned in grounds of detention, has a long

history and deep involvement in anti-social activities he first time came into adverse notice of Police in year 2018 while subject was arrested red

handed outside the Valley, on conducting his personal search one polythene containing drugs was recovered from his possession. The subject was

carrying illegal trade of cannabis and drugs to sell them outside Valley. To this effect case FIR No.04/2018 U/S 8/21 and 22 NDPS of P/S Gangyal

Jammu was registered against him. As is also discernible from dossier, the detenu after his release did not give up from his nefarious activities of

selling and indulging in illicit trade of Narcotics. The modus operandi of detenu is that he procures Narcotic from various areas and sells it at a higher

price among school going youth/other prospective drug addicts. The easy availability of Narcotic and Psychotropic Substances and Intoxicating drugs

have made large number of youth addict to such drugs, with the result these addicts are found subsequently indulging in other crimes as well. The

detenu is averred to have developed contacts in and around the area of Srinagar City as well as outside Valley for sale of Narcotic drugs and his role

in selling the narcotic drugs has become pivotal. The detenu has been found involved in one more case FIR No.05/2020 U/S 8/20 of P/S R.M.Bagh.

The detenu has been arrested in two cases of NDPS Act but after every release, he again and again adopts same path, and his one and only intention

is to destroy life of youth. This act is being done by detenu to gain huge money by using such an illegal path and he has not mended his ways and is

continuously running said illegal trade of selling of Illicit Narcotic and Psychotropic, Intoxicating substances among youth. The dossier also mentions

that in order to stop detenu from indulging in illegal trade and to prevent him from affecting health and welfare of society, his detention under

provisions of Prevention of Illicit Trafficking in Narcotic Drugs and Psychotropic Substances Act has become imperative at this stage as the normal

law has not proved sufficient to stop such dreaded drug trafficker from indulging in such illegal activities which are hazardous to human health and

society.

Let us now go through the contents of Grounds of Detention and what comes to fore from its perusal would be worthwhile to be looked into and

deliberated upon. In this regard, it is profitable to reproduce relevant portion of Grounds of Detention hereunder:

“Grounds of Detention

Bashir Ahmad Bhat

S/o Gh Rasool Bhat

R/o Barbarshah Srinagar

You were born at native place Kralpora, Kupwara and migrated to Barbarshah, Srinagar in the year 1984. You are about 53 years old. You are an

illiterate person. You married with daughter of one Sh. Ali Mohammad at Gowkadal in the year 1987, you started working as a driver with one

Ghulam Mohammad Sofi R/o Maisuma and then purchased your own passenger vehicle (Mazda Bus). You have not a house of your own you were

living initially in a shed at Barbarshah Bund.

You got engaged in cannabis smuggling with your wife and started selling cannabis to local youth. After few years you and your wife realized that

smuggling of cannabis is not sufficient for you and started dealing with other Narcotic and Psychotropic Substance like Brown Sugar and Heroin. You

were given several warnings but you never attempted to mend your ways and activities of indulging in illegal drug trade, and you with the like minded

people continued your activities of drug peddling and involving general public especially youth into drug abuse. You have collected huge wealth

(moveable and immovable) from these illegal activities. Your activities are not only in contravention to law but are also threat to maintenance of

peaceful atmosphere within the area of east Zone Srinagar. In short span of time you have achieved a powerful position among your associates with

sole aim to destroy youth, for achieving this object you exploiting local youth. You are involved following cases:

I. Case FIR No.04/2018 u/s 8/21 and 22 NDPS Act P/S Gangyal Jammu

II. Case FIR No.05/2020 u/s 8/20 NDPS Act P/S R.M.Bagh Srinagar

The FSL report in FIR No.04/2018 bearing No.167/C&T/FSL/ 2018 Dated 02.03.2018, 29.02.2020 mentions that “Heroin was detected in the

Exhibit No.P-209/2018 & P-210/2018â€​.

people of the area. You started usage and motivation of youth for consummation of drugs so as to increase your earnings. You are an active member

of the drug mafia which is hell bent to spoil the life and career of young generation by selling drugs to them. Your designs and conducts are to lure

teen aged youth and school going children into menace of drugs. Your modus operandi is to sell the drugs to youth particularly school going children

during school hours after illegally stocking ample quota of drugs. You and other drug peddlers are also indulging in other anti-social activities which

have made the life of peace loving citizens of District Srinagar miserable and caused scare among the parents.

The reports received from the field agencies are suggestive of the fact that you are clandestinely dealing in illegal business of Narcotics and in order

to carry out this illegal trade, you are exploiting the immature minds of the younger generation by making them dependent on drugs and to make them

habitual addicts.……â€​

From bare reading of above quoted grounds of detention, it is evident that the facts those have been mentioned in the dossier, produced by concerned

police before detaining authority, have been mentioned by detaining authority in grounds of detention. Both, Dossier and Grounds of Detention refer to

and rely on two cases â€" FIRs, which have been registered against detenu and in which detenu had been arrested and later released. It is pertinent to

mention here that contents of Dossier squarely rely upon two FIRs, which have been registered against detenu in view of activities of detenu which

have deleterious affect on our society.

It is made clear here that detenu cannot be heard saying that he has no knowledge about two FIRs, which have been mentioned in Dossier as well as

in grounds of detention. So, all that was required to be communicated in view of issuance of detention order has been conveyed to detenu when

detention order, grounds of detention and two FIRs, in which he had been arrested and released, were made available to him; explained to him in his

vernacular; and he was also informed to make representation against his detention. The averments made in the Dossier and/or Grounds of Detention

are those facts which emerge in view of contents of two FIRs.

Maybe a submission may rise up that grounds of detention are not complete facts but are their conclusions. However, it may be mentioned here that in

the present case the conclusions drawn by detaining authority are derivable from two FIRs as these two FIRs give the account of details of prejudicial

activities of detenu that he had ventured into. So, there is no force in the submission of petitioner that detenu has not been given or provided copy of

Dossier. Had detenu been interested in making a representation against his detention, he could have made such a representation when copies of

grounds of detention and two FIRs were furnished to him; read in his vernacular; and he was informed to make a representation against his detention.

He, however, did not do so.

In that view of matter, impugned judgement need not be interfered with.

Another submission of learned counsel for appellant is that learned Single Judge has not appreciated the contention of appellant that detenu was not

provided translated copies of grounds of detention and other material relied upon by detaining authority in Kashmiri language, thereby making him

unable to file a representation against his detention.

As regards above submission, we may mention here that detention record produced by learned counsel for respondents reveals that executing officer,

namely, Gh. Hassan ASI no.3037/5 EXK 841291 of police station Kralkhud, executed detention warrant. Execution report and Receipt of grounds of

detention, signed by detenu in Urdu language, also reveal that the material supplied to detenu has been read over and explained to him in

Urdu/Kashmiri language, which he understood fully and he was also informed to make a representation against his detention.

The contention that translated copies of grounds of detention and other material, relied upon by detaining authority to issue impugned detention

order, in Kashmiri language have not been provided to detenu to enable him to make a representation against his detention, is an exaggeration on the

part of appellant, for, he has claimed that detenu is read up to Primary level only and does not know English language. If detenu has read up to

Primary level only, he cannot be expected, rather think of, to write in Kashmiri language. Not only this, perusal Execution report and Receipt of

grounds of detention unambiguously reveal that detenu has put his signatures on the Execution report and Receipt of grounds of detention in Urdu

language. That apart, bare reading of Receipt of grounds of detention reveals that grounds of detention and other material have been read upon detenu

in Urdu/Kashmiri language, so he cannot be heard saying that he has been incapacitated or prevented by respondents to make a representation against

his detention.

It is mentioned in the appeal on hand that FIRs, registered against detenu, are manipulated and alleged activities attributed to him are all imaginary

and based on surmises and are false, baseless and concocted. We may emphasise here that this Court or for that matter learned Writ Court is/was not

required to discuss and/or adjudicate upon recitals of FIRs. Such a submission of learned counsel for appellant is unfounded.

The judgements, viz. Sumit Singh v. State of J&K and others, (2011) 2 JKJ 772; Mohammad Yousuf Mir v. State and others, (2011) 3 JKJ 401; and

judgements reported in AIR 2009 SC 2184; 2017 (2) SLJ 681; 2017(2) SLJ 650; 2013(2) SLJ 480, etc., will not render any aid or assistance to the

case of appellant, in view of the well-settled law that an order of detention is not a curative or reformative or punitive action, but a preventive action,

avowed object whereof being to prevent antisocial and subversive elements from imperiling welfare of the country or security of the nation or from

disturbing public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc.

Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention

is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent

him from doing so. [Vide: Borjahan Gorey v. The State of West Bengal, (1972) 2 SCC 550; Debu Mahto v. The State of W.B., AIR 1974 SC 816;

State of U.P. v. Durga Prasad, (1975) 3 SCC 210; Ashok Kumar v. Delhi Administration and others, AIR 1982 SC 1143; Gautam Jain v. Union of

India & anr., 2017 (1) JKLT 1 (SC); and

According to learned counsel for appellant, the detaining authority has not attributed any specific allegation against detenu; vague allegations have

been made against detenu; grounds of detention are bereft of specific details, rendering detention order non-existent. These aspects of the matter are

said to have not been considered by learned Writ Court while passing the impugned judgement.

Vagueness of grounds of detention as contended by learned counsel for appellant has been elaborately discoursed by learned Writ Court.

Paragraph 16 of impugned judgement unveils ornate discourse. Learned Writ Court has rightly said that a single act, in view of law laid down by the

Supreme Court, was sufficient to sustain order of detention as the gravity and nature of the act is also relevant to be taken into account. In that view

of matter impugned judgement need not be interfered with and resultantly Appeal on hand is liable to be dismissed.

In view of above, we do not see any reason to interfere with the well-reasoned judgement passed by learned Single Judge, which otherwise appears

to be based upon correct appreciation of facts and circumstances of the case as well as law laid down by the Supreme Court and by this Court from

time to time. Accordingly, the present Appeal fails and is, accordingly, dismissed.

Interim direction, if any, is vacated.

Detention record be returned to learned counsel for respondents.