Sheikh Nassir Hussain alias Imran vs State and Others

J.P. Singh, J.—Sheikh Nassir Hussain alias Imran has filed this Petition questioning his Detention u/s 3(1) of the Jammu and Kashmir

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, ordered vide Divisional Commissioner, Jammu's Order No.

PITNDPS/01 of 2009 dated 23.11.2009.

According to the Divisional Commissioner, the detenu, a notorious and habitual smuggler of Charas, had developed a huge network and a large

gang, which was involved in the smuggling of Charas from Kashmir to Gujrat, Ahmedabad, And to prevent him from continuously indulging in

smuggling of Charas and spreading his network, it was necessary to detain him under the provisions of the Jammu and Kashmir Prevention of Illicit

Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, although pursuant to his arrest in FIR No. 62/2008 registered at Police Station,

Samba u/s 18 of the NDPS Act, he was in judicial lock up in District Jail, Jammu.

The ground relied upon by the Divisional Commissioner to detain Sheikh Nassir Hussain in preventive custody, despite his being in judicial

custody, is that there was every likelihood that he may manage to get bail and abscond thereafter.

Relying on Sayed Abdul Ala v. Union of India and Ors. reported as 2007 AIR SCW 6974, the detenu's learned Counsel submitted that the

Divisional Commissioner's order was arbitrary and illegal, in that, it, inter alia, suffered from non-application of mind because the grounds, on the

basis whereof, it had been issued, were unwarranted and even otherwise based on unfounded and baseless presumption of the likelihood of

detenu's release on bail for which there was absolutely no material on records and the detention was thus liable to be quashed.

I have considered the submissions of the detenu's learned Counsel and those made by the learned State Counsel to support the Detention.

Detention Records made available by the learned State Counsel too have been perused.

The records produced by the learned State Counsel do not contain any material on the basis whereof it be said that the detenu was likely to be

released on bail and abscond thereafter.

The Police Dossier, on which the learned Divisional Commissioner has relied to issue the Detention Order, too does not indicate likelihood of

detenu's release on bail and absconding thereafter.

The Counter Affidavit filed by the Detaining Authority also does not refer to any material on the basis whereof he recorded satisfaction that there

was likelihood of detenu's managing bail and absconding thereafter. It is a settled proposition of law that while detaining a person, who was already

in custody, in the preventive custody, the Detaining Authority is required to satisfy itself, on reliable material, that the detenu was likely to indulge in

activities for which his preventive detention may be permissible under law.

The grounds of Detention and the Detention Order do not indicate the Detaining Authority's satisfaction as to the detenu's likelihood of

committing one or the other acts indicated in Section 2(c) of the Act, when released from judicial custody, on the basis whereof, preventive

detention may be permissible.

Such being the case, Sheikh Nassir Hussain's detention, having been ordered, without recording requisite satisfaction as to the existence of the

grounds contemplated by the provisions of Section 3 read with Section 2(c) of the Act, cannot be sustained. This apart, keeping in view the

stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, bail where-under is only an exception and that too

after recording a finding that there was reasonable ground for believing that the accused was not guilty of the offence and not likely to commit any

offence while on bail, And the fact that there was no Bail application pending in the Court for detenu's release on bail immediately before issuance

of the Detention Order, the satisfaction recorded by the Divisional Commissioner that the detenu may seek his release on bail and abscond

thereafter, without there being any material of any type whatsoever in support thereof, cannot but be termed an exercise of power u/s 3 of the Act,

without application of mind.

I am supported in taking the above view by the law laid-down in Sayed Abdul Ala's case supra.

Thus having been issued in violation of the provisions of Section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and

Psychotropic Substances Act, 1988, Sheikh Nassir Hussain's Detention cannot be sustained.

For all what has been said above, this Petition, therefore, succeeds and is, accordingly, allowed, quashing Divisional Commissioner, Jammu's

Order No. PITNDPS/01 of 2009 dated 23.11.2009.

A direction shall, therefore, issue to the respondents to set the petitioner free from preventive custody. Detention records be returned to the

State Counsel.