Detention Order Passed For Pleasure Of Passing It, Grounds Not A Matter Of Wordplay: High Court Censures Kashmir Divisional Commissioner

Justice Rahul Bharti said that the petitioner was on bail in the case under NDPS Act, thereby he was in regular attendance before the investigating agency and in a sense under the constructive custody of law.

However, the court said it still took the authorities more than one long year to execute the order against him.

"It is a pointer to the fact that passing of the detention order was taken for the pleasure of passing an order at the end of the detaining authority rather than with the actual purpose of preventing the person under the preventive detention so as to deprive/deny him the potential opportunities/occasion to indulge in the very same activities for which the preventive detention is aimed to ward off".

The court made the observations in its decision on a habeas corpus plea challenging the legality of the detention order passed by Divisional Commissioner Kashmir under Section 3 of the PITNDPS Act.

The detention order was passed on the basis of petitioner's alleged involvement in an FIR under NDPS Act. The accused had been granted bail by the Sessions Court in June 2020. 

Justice Bharti noted that while the petitioner was enlarged on bail, a detention order dated 27.2.2021 came to be issued by the detaining authority, which came to be executed only after a lapse of more than one year on 27.03.2022.

The court said apart from the FIR, no antecedents of the petitioner bearing any relation with the alleged illicit traffic in narcotic drugs and psychotropic substances finds mention in the detention order passed by the Divisional Commissioner.

Commenting on the delay in execution of detention order, the court said if the haste for preventive detention was so present on account of his alleged complicity in the FIR then the deferred execution meant as if the authorities "were allowing the detenue to enjoy free run for a period of one year to carry on with his alleged activities for which he otherwise ought to have been under preventive custody without loss of time from the date of passing of the detention order."

The court further said the grounds of detention only reflect generalisations and no factors are mentioned therein.

"The Grounds of Detention germinate from the facts placed/brought before the detaining authority by the Law and Order Enforcement Agencies which include the Police. The expression “Grounds of Detention” is not a matter of wordplay of forming sentences but the appreciation of the facts available on record to generate the grounds therefrom for convincing the Detention Authority that the activities reported against the prospective detenue make out compelling case for his preventive detention and no other course of action."

Observing that the petitioner is earning his bail in the FIR, has not offended any bail condition and has not even been booked for any new commission of offences of same or other nature so as to become a repeat offender, the bench said it "is at a loss to appreciate" as to how he could be held to be potential doer of the "apprehended unspelled acts" on the basis of the solitary FIR.

"Thus, groundless was and is the detention order," said the court, adding it finds no justification to lend legitimacy, legality and validity to the impugned order of the Divisional Commissioner, Kashmir.

The bench ordered immediate release of the detenu provided he is not required in any other case.

Case Title: Zahid Nabi Khan Vs UT of J&K

Citation: 2022 LiveLaw (JKL) 6

Coram : Justice Rahul Bharti

Counsel For Petitioner: Mr Umar Rashid Wani.

Counsel For Respondent: Mr Sajad Ashraf GA

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