Nazir Ahmad Bhat vs UT Of J&K & Ors

Sanjay Dhar, J

1) Divisional Commissioner, Kashmir, in exercise of powers conferred under Section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as “Act of 1988”), has, vide order No.DIVCOM-“K”/172/2021 dated 25.09.2021, ordered detention of Nazir Ahmad Bhat S/o Ab. Aziz Bhat R/o Khellan Litter Pulwama (hereinafter referred to as the detenue).

2) The petitioner has contended that the Detaining Authority has passed the impugned detention order mechanically without application of mind. It has been further contended that the Constitutional and Statutory procedural safeguards have not been complied with in the instant case. It has also been urged that the allegations made against the detenue in the grounds of detention are vague and that the detenue has been disabled from making an effective representation against his detention because the material, on the basis of which detention order has been passed, has not been provided him.

3) Upon being put on notice, the respondents appeared and filed their counter affidavit wherein they have refuted the contentions raised in the petition. It is contended by the respondents that they have followed the provisions of the Act of 1988. It is contended that the detenue has been detained only after following due procedure; that the grounds of detention were read over to the detenue; that there has been proper application of mind for detaining the detenue and that the detenue has been provided all the material. The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.

4) I have heard learned counsel for parties and perused the material on record.

5) Although learned counsel for the petitioner has raised a number of grounds in the petition but during the course of hearing, he has laid stress on the following two grounds:

I) That the petitioner/detenue has not been provided the material which formed basis of the grounds of detention, as a result whereof he was unable to make an effective representation against the order of detention;

II) That the incidents, reference whereof has been made in the grounds of detention, are stale and on the basis of said incidents, the impugned order of detention could not have been passed.

6) A perusal of the reply affidavit filed by the respondents reveals that the petitioner has been provided 31 leaves comprising detention order, notice of detention, grounds of detention, dossier of detention, copies of FIR, statements of witnesses and other related documents. The execution report contains the signature of the petitioner. Thus, the contention of the petitioner that he has not been provided the relevant material gets refuted from the documents placed on record by the respondents.

7) That takes us to the second ground raised by the petitioner. If we have a look at the grounds of detention, it bears reference to two incidents, one dated 11.10.2019 and 19.10.2021. It is alleged in the grounds of detention that on 11.10.2019, the petitioner along with his associates was apprehended by police while they were in possession of Hemp, Ganja plant, charas and heroin. In this regard FIR No.62/2019 for offences under Section 8/20, 22 NDPS Act stands registered against the petitioner with Police Station, Litter. The second incident is of 19th of October, 2019 and it is stated in the grounds of detention that narcotics in the shape of Poppy Straw, Cannabis leaves and Brown Sugar were recovered from the possession of Rouf Ahmad Mir, Sartaj Ahmad Mir and Showkat Ahmad Bhat. In this regard FIR No.64/2019 for offences under Section 8/15, 8/20 was registered with Police Station, Litter.

8) So far as the incident of 11.10.2019 is concerned, there are allegations that narcotic substances were recovered from the petitioner but in the other incident dated 19.10.2019, nothing has been recovered from the possession of the petitioner nor his involvement in the said incident is shown. The fact that the detaining authority has based its decision to detain the petitioner on an incident in which, admittedly, petitioner was not involved, shows total lack of application of mind on its part.

9) Ever otherwise, both incidents which are subject matter of grounds of detention, relate to October, 2019, whereas the impugned order of detention has been passed in September, 2021 i.e. about two years thereafter. The grounds of detention do not bear reference to any other incident in which the petitioner’s involvement has been disclosed. It is trite law that a person cannot be detained on the basis of old and stale incidents. There has to be a live and proximate link between the incidents which form the basis of the order of detention.

10) I am supported in my aforesaid view by the judgment of the Supreme Court in the case of Sama Aruna v. State of Telengana and & anr, (2018) 12 SCC 150. In the said judgment, the Court, while holding that the incidents which are said to have taken place long back cannot form basis for being satisfied that the detenue is going to engage in similar activities, observed as under:

“17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it.”

11) From the aforesaid enunciation of the law on the subject, it is clear that there has to be a live and proximate link between the past conduct of the detenue and the activities alleged. In the instant case, the said link is completely missing as the time between the order of detention and the incidents referred to in the grounds of detention is far too large to presume such a link. The impugned order of detention, therefore, cannot be sustained.

12) For the afore-stated reasons, the petition is allowed and the impugned detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case.

13) The detention record be returned to the learned counsel for the respondents.