‘Total non-application by detaining authority’: J-K High Court raps official over drug trafficking action

In its order on March 6, the High Court noted the mention of “maintenance of public order” in the grounds given for the detention of the two, and said this suggested that the detaining authority was not certain whether the activities of the detainees fell within the definition of illicit trafficking, as contained in Section 3 of the PITNDPS Act, or within the purview of breach of public order.

“A person cannot be detained for acts prejudicial to the maintenance of public order in exercise of powers under Section 3 of the PITNDPS Act,” Justice Sanjay Dhar held.

Singh and Arif had challenged their detention on the ground that it had been ordered “without application of mind” and on grounds that were not covered under Section 3 of the PITNDPS Act.

Their counsel Ajay Gandotra also submitted that both the detention order and the grounds of detention therein were nothing but reproduction of allegations made by district police chiefs of Jammu and Rajouri in their respective dossiers.

In his counter-affidavit, the Divisional Commissioner said the detentions had been ordered after determining the need for the same, on the basis of dossiers submitted by the SSPs, Jammu and Rajouri. And that after getting bail in the cases for which they had been booked, Singh and Arif had been found indulging again in trafficking of narcotic drugs, which posed a threat to public order and welfare.

In his order, Justice Dhar noted that police FIRs, entries in General Diary and confidential reports had recommended the detention of Singh and Arif for the sake of public order, peace and tranquillity, arguing that law had failed to deter them from indulging in drug trafficking.

However, the High Court said, in its concluding para on the grounds of detention, the Divisional Commissioner had said the same was necessary under Section 3(1) of the PITNDPS Act “with a view to prevent petitioners from committing any offence under the PITNDPS Act and to secure health and welfare of the public at large”.

Justice Dhar added: “… it appears that the detaining authority and the sponsoring agency (police) intended to place the petitioner under preventive detention inter alia with a view to maintain public order, peace and tranquillity… The other objective for detaining the petitioner may have been to prevent him from indulging in illicit traffic (in) drugs.”

A detaining authority has to be certain about the reasons for acting against a person, the High Court said. In the case of Singh and Arif, the Divisional Commissioner needed to be clear “whether the activities of the detenu are a threat to the public order or whether such activities relate to illicit trafficking of drugs”.

Justice Dhar also said that the Divisional Commissioner noted in his order that the detentions were necessary to prevent the two people from committing “any offence” under the PITNDPS Act. However, the court pointed out, the Act’s provisions do not define any offence and are designed only to prevent individuals from engaging in trafficking in narcotic drugs and psychotropic substances through preventive detention.

“The fact that detaining authority has recorded that the petitioner is being detained with a view to prevent him from committing any offence under the PITNDPS Act, when there is no offence defined under the said Act, shows total non-application on the part of the detaining authority,’’ the court held, adding that the detention order, therefore, was unsustainable in law.