Preventive Detention Under PITNDPS Act Valid Only If Activities Fall Within Statutory Definition Of 'Illicit Traffic': J&K&L High Court

The Jammu and Kashmir and Ladakh High Court has held that preventive detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act (PITNDPS) can be ordered only when the activities of a detenue fall within the statutory definition of “illicit traffic”.The Court held that a person cannot be preventively detained under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 unless the activities attributed to the detenue fall within the statutory definition of “illicit traffic” as contained in the Act.The Court was hearing a habeas corpus petition challenging a preventive detention order issued by the Divisional Commissioner, Jammu under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.Justice Sanjay Dhar observed that uncertainty on the part of the detaining authority regarding the nature of the alleged activities undermines the legality of the detention order. The Court noted, “A person cannot be detained for the acts prejudicial to the maintenance of public order in exercise of powers under Section 3 of the PITNDPS Act. It is only if the acts of a detenue fall within the definition of Clause (c) of Section 2 of PITNDPS Act that he can be taken into preventive custody. The tentativeness on the part of the detaining authority in drawing the conclusion regarding the nature of activities of the petitioner vitiates the subjective satisfaction drawn by it.”Background:The petition was filed challenging an order under PITNDPS whereby the Divisional Commissioner, Jammu ordered the preventive detention of the petitioner under Section 3(1) of the PITNDPS Act. The petitioner contended that the detention order had been passed without application of mind and for an objective alien to the purposes contemplated under Section 3 of the Act. It was also argued that there was no proximate or live link between the alleged incidents relied upon in the grounds of detention and the order of detention. The petitioner further asserted that the grounds of detention had not been explained to him in a language he understood and that the detention order merely reproduced the allegations contained in the dossier submitted by the Senior Superintendent of Police, Jammu. The respondents contested the petition by filing a counter affidavit stating that after securing bail in earlier criminal cases, the petitioner continued to engage in illicit trafficking of narcotic drugs, which posed a threat to public order as well as the health and welfare of the people. It was submitted that the detaining authority, after examining the dossier submitted by the SSP, Jammu, arrived at the requisite subjective satisfaction for passing the detention order. The respondents also asserted that while executing the detention warrant, the petitioner had been supplied the entire detention material comprising 121 leaves and that the contents were explained to him in Hindi. Court's Observations:Upon examining the detention record and hearing the parties, the Court noted that although several grounds had been raised in the petition, the principal contention pressed during arguments was that the detention order had been passed for an objective alien to the purpose contemplated under Section 3 of the PITNDPS Act.The Court examined the grounds of detention and found that the detaining authority had referred to multiple FIRs registered at Police Stations Nawabad, Bishnah, Domana and Janipur, along with two Daily Diary Reports, and had relied upon a dossier submitted by the Senior Superintendent of Police, Jammu recommending preventive detention of the petitioner. The Court observed that the grounds of detention indicated that the sponsoring agency had recommended detention to maintain “public order, peace and tranquility”, while the concluding part of the detention order suggested that the detention was necessary to prevent the petitioner from committing offences under the PITNDPS Act and to secure the health and welfare of the public. According to the Court, the detaining authority must be certain about the precise nature of the activities attributed to the detenue while formulating the grounds of detention and drawing the requisite subjective satisfaction. The authority must clearly determine whether the alleged activities constitute a threat to public order or whether they fall within the statutory concept of illicit trafficking in narcotic drugs, the court underscored. The Court further held that the reference to “maintenance of public order” in the grounds of detention demonstrated uncertainty on the part of the detaining authority regarding whether the petitioner's activities amounted to illicit trafficking within the meaning of the PITNDPS Act or merely related to public order concerns. Such uncertainty, the Court held, vitiated the subjective satisfaction underlying the detention order. The Court alao observed that the...

Preventive Detention Under PITNDPS Act Valid Only If Activities Fall Within Statutory Definition Of 'Illicit Traffic': J&K&L High Court

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