PITNDPS Detention Unsustainable Without Commercial Quantity; Reliance On Pending FIRs Shows Non-Application Of Mind: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that preventive detention under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS) cannot be ordered by mechanically relying on pending FIRs in which the detenu has already been granted bail, especially when no commercial quantity of narcotics was recovered from the detenu and there is no allegation of violation of bail conditions.The Court was hearing a habeas corpus petition filed by the wife of the detenu challenging the PITNDPS order of detention passed by Divisional Commissioner, Jammu, invoking powers under Section 3(1) of the PITNDPS Act read with SRO-247 dated 27.07.1988, whereby the petitioner/detenu was directed to be detained and lodged in District Jail Udhampur.A Single Bench of Justice Mohd Yousuf Wani, while allowing the petition and quashing the detention order, observed, “.. In none of the cases against the petitioner, as mentioned in the grounds of detention, a commercial quantity of narcotic drugs or psychotropic substances is alleged to have been recovered from the possession of the detenu. The same thing is borne out from the bail orders of the learned trial court. So, the non-application of mind and the lack of subjective satisfaction is discernable in the facts and circumstances of the case.”The detenu was allegedly involved in three FIRs for offences under the NDPS Act and was subsequently enlarged on bail in all these FIRs by competent trial courts. The detention order was passed on 16.04.2025.The petitioner contended that there was no legal justification for detention on mere allegations of involvement in FIRs where the detenu was already on bail, that copies of documents forming the basis of the detention order were neither furnished nor explained in a language understandable by him, that he was not informed of his right to make a representation, and that the grounds of detention were stale and had no proximity with the object of detention.The respondents argued that the detenu is a habitual offender involved in a series of NDPS cases, that despite being granted bail he continued to indulge in illicit trafficking of heroin, that the detaining authority applied independent mind to the material on record, and that procedural requirements under Article 22(5) were strictly followed.Court's Observations:The Court noted that it is an admitted position that the detenu had been enlarged on bail in all the aforesaid FIRs. The Court held that it was incumbent upon the detaining authority to address itself as to how the normal criminal law was inadequate to deal with the petitioner who had already been granted bail. The Court observed that it was not the case of the respondents that the detenu had violated any bail conditions, nor was it their stand that they had assailed the bail orders but did not succeed.Referring to Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, the Court noted that the Supreme Court has held that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.The Court found that the last criminal act allegedly committed by the detenu pertained to 14.12.2024, and a period of about four months elapsed between that occurrence and the passing of the detention order on 16.04.2025. Relying upon Rajinder Arora v. Union of India and others, (2006) 4 SCC 796, the Court observed that when there is undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation.The Court specifically noted that the detaining authority had not in clear and pellucid manner mentioned in the grounds of detention as to how the normal criminal law failed to prevent the detenu from repeating the commission of crime. The Court further observed that in none of the cases against the petitioner was a commercial quantity of narcotic drugs alleged to have been recovered from his possession, as borne out from the bail orders. The Court held that this fact further demonstrated non-application of mind and lack of subjective satisfaction.Regarding procedural safeguards, the Court noted that the police officer entrusted with execution of the detention warrant did not furnish a copy of the detention record in its entirety to the detenu, and that the contents of the detention warrant and grounds of detention were not explained to him in his vernacular language. The Court remarked, “The preventive detentions need to be passed with great care and caution keeping in mind that a citizen's most valuable and inherent human right is being curtailed. The arrests in general and the preventive detentions in particular are an exception to the most cherished fundamental right...

PITNDPS Detention Unsustainable Without Commercial Quantity; Reliance On Pending FIRs Shows Non-Application Of Mind: J&K&L High Court

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PITNDPS Detention Unsustainable Without Commercial Quantity; Reliance On Pending FIRs Shows Non-Application Of Mind: J&K&L High Court

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