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Nisar Ahmed v/s State of J&K & Others

    HCP. No. 50 of 2017

    Decided On, 16 July 2018

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE TASHI RABSTAN

    For the Petitioner: I.H. Shah, Advocate. For the Respondents: Amit Chopra, GA.



Judgment Text

1. Shri Nissar Ahmed @ Mama Krishta son of Shri Abdul Ghani R/o Chandi Marh, Tehsil Surankote, District Poonch (for short 'detenu') has been, vide Order impugned bearing No.PITNDPS-02 of 2017 dated 21st of September, 2017, passed by Divisional Commissioner, Jammu (respondent No.2) here (for brevity 'detaining authority') placed under detention and lodged in Central Jail, Kote Bhalwal, Jammu.

2. The case set up in the petition is that FIRs No. 128/2017 and 154/2017 were registered at Police Station, Rajouri against the detenu for commission of offence punishable under Sections 8/20 NPDS and 341/323/382. Challan has also been produced which is pending before the Court of learned Principal Sessions Judge, Rajouri. It is contended that the petitioner was enlarged on bail by the competent Court of law and is now facing the trial. It is also contended that petitioner is working as fruit vendor and supporting his family and the order impugned has been passed by the detaining authority on the basis of false, fabricated and concocted facts forwarded by sponsoring authority. It is also contended that the petitioner is not involved in any criminal activity on the basis of which detention order is passed against him. It is maintained in the petition that grounds of detention as formulated by the Divisional Commissioner have been incorporated in the dossier which ipso facto demonstrate complete non-application of mind on part of detaining authority and that no compelling reasons have been assigned. The detenu is stated to have been falsely implicated in the aforementioned FIRs, when the detenu has not at all any remote connection with the allegations levelled in the FIRs. For quashment of detention order, case-law has been referred to by the learned counsel for the petitioner, which are Naseer Ahmed Pandit Vs. State

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of J&K and ors., 2017 (2) JKJ (HC) 637 and Tariq Ahmad Dar Vs. State of J&K and ors., 2017 (3)JKJ (HC) 684.

3. Mr. Amit Chopra, learned counsel for respondents objects the petition on the ground that detention order has been passed in exercise of powers vested with detaining authority in pursuance of section 3 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988, with a view to prevent detenu from indulging in illegal trade of illicit traffic in narcotic drugs and psychotropic substance. He insists that drug trafficking poses a great threat to the society for the reason that proceeds of drug sale can be utilized for financing of other criminal activities and that detenu has made the life of peace loving citizens of Rajouri miserable and have caused scare among the parents. He contends that consignment seized from detenu’s possession shows that detenu is fully involved in illegal trade with conscious mind, in an organized manner, which is great threat for sustaining moral values of the society, thus, this aspect poses a serious threat to the health, wealth and welfare of the people especially young generation in the State.

4. I have heard learned counsel for parties, perused the record of detention and considered the submissions advanced by both the sides.

5. This Court vide judgment dated 28th March 2016 passed in HCP no.11/2016 titled Jahangeer Ahmad Khan versus State of J&K and others, has comprehensively discussed whatever is subject matter of instant petition. This Court observed that 'it is not a number of acts that are to be determined for detention of an individual but it is impact of the act which is material and determinative. In the instant case the act of detenu relates to drug trafficking, which has posed serious threat, apart from health and welfare of the people, to youth, most particularly unemployed youth, to indulge in such acts, ramifications thereof would be irreversible.'

6. Apart from the above discussion, learned counsel appearing for petitioner, during course of argument, has placed reliance on decisions passed in Shabir Ahmad Wani Versus State & ors reported in JKJ 2011 (4) 302 [HC]; Sheikh Mohd. Sharief versus State & ors reported in JKJ 2011 (1) 577 [HC); Yasmeen Raja vs. State of J&K & ors reported in SLJ 2011 (II) 663; and Rekha vs. State of Tamil Nadu & anr., reported in (2011) 4 SCC 260. The set of facts and circumstances of the cited cases by learned counsel for petitioner, are totally distinguishable from the facts and circumstances of present case. In those cases there had been possibility of detenu to be released on bail. However, in the present case it is not only that detenu was released on bail, but he was found involved in almost all the drug peddling incidents which took place in adjoining areas of Pulwama town and the detenu is said to be involved in six cases/FIRs and even after he was bailed out, he every time recycled into the illicit trade and has not bothered to mend his activities.

7. It is pertinent to point out that the Supreme Court in the cases of D. M. Nagaraja Vs. Government of Karnataka and others, reported in (2011) 10 S.C.C. 215 and G. Reddeiah Vs. Government of Andhra Pradesh and another, reported in (2012) 2 S.C.C. 389, has considered the earlier decision in the case of Rekha vs. State of Tamil Nadu & anr., (2011) 4 SCC 260 and distinguished it. In the case of D. M. Nagaraja (supra), it is observed:

"18. The learned counsel for the appellant very much relied on a decision of Apex Court in Rekha. In the above case, against the detention order dated 8.4.2010 imposed on Ramkrishnan under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders, Sand Offenders, Slum-Grabbers and Video Pirates Act, 1982 on the allegation that he was selling expired drugs after tampering with labels and printing fresh labels showing them as non-expired drugs, his wife filed a habeas corpus petition before the Madras High Court. The said writ petition came to be dismissed. Hence, the wife of the detenu therein, approached the Apex Court by way of special leave to appeal.

19. In the judgment in Rekha, Apex Court has extracted the detention order and the grounds for detaining him under the Tamil Nadu Act, 1982. The grounds show that there is reference to one incident relating to selling expired drugs and the detaining authority by pointing out that necessary steps are being taken by his relatives to take him out on bail and since in similar case, bails were granted by the courts after lapse of some time and if he comes out on bail, he will indulge in further activities which will be prejudicial to the maintenance of public health and order and recourse to normal criminal law would not have the desired effect of effectively preventing him from indulging in such activities, on the materials placed and after fully satisfying, the detaining authority has passed an order under the Tamil Nadu Act, 1982. In para 7, the Bench has pointed out that in the grounds of detention, no details have been given about the alleged similar cases in which bail was allegedly granted by the court concerned. The grounds retracted therein also are bereft of any further details. In those circumstances, this Court taking note of various earlier decisions came to the conclusion that normal recourse to ordinary law would be sufficient and there is no need for invocation of the special Act.

20. In the case on hand, we have already extracted criminality, criminal activities starting from the age 30 and details relating to eleven cases mentioned in the grounds of detention......

21. In view of enormous materials which are available in the grounds of detention, such habituality has not been cited in the above referred Rekha, we are satisfied that the said decision is "distinguishable" on facts with reference to the case on hand and the contention based on the same is liable to be rejected."

8. Thus, from the decision in the case of Nagaraja (supra), it is clear that each case will have to be decided on the peculiar facts of that case. In the case of G. Reddeiah (supra), the Supreme Court in paragraph 23, observed as under:

"23. Though an attempt was made to nullify the order of detention by drawing our attention to the decision of Apex Court in Rekha Vs. State of T.N. (2011) 5 SCC 244 : (2011) 2 SCC (Cri.) 596, on going through the factual position and orders therein and in view of the enormous activities of the detenu violating various provisions of IPC, the A.P. Act and the Rules, continuous and habituality in pursuing the same type of offences, and taking note of the abundant factual details as available in the grounds of detention and also of the fact that all the procedures and statutory safeguards have been fully complied with by the detaining authority, we are of the view that the said decision is not applicable to the case on hand. On the other hand, we fully agree with the reasoning of the detaining authority as approved by the Government and upheld by the High Court".

9. It may not be out of place to point out here that it is well settled that a judgment of a Court is not to be read mechanically as a Euclid's theorem nor as if it was a Statute. On the subject of precedents Lord Halsbury, L.C. said in Quinn vs. Leathem, 1901 AC 495:

'Now before discussing the case of Allen Vs. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.'

10. In Ambica Quarry Works vs. State of Gujarat & others reported in (1987) 1 SCC 213 the Hon‟ble Supreme Court observed that 'The ratio of any decisionmust be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority for what it actually decides and not what logically follows from it'.

11. In Bhavnagar University vs. Palittana Sugar Mills Pvt. Ltd. reported in (2003) 2 SCC 111, the Supreme Court observed that 'It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision'. As held in Bharat Petroleum Corporation Ltd. & another vs. N.R. Vairamani & another reported in AIR 2004 SC 4778, a decision cannot be relied on without disclosing the factual situation. In the same judgment the Hon’ble Supreme Court also observed:

'Courts should notplace reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes'

12. In London Graving Dock Co. Ltd. vs. Horton (1951 AC 737 at page 761), Lord Mac Dermot observed that 'The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge'.

13. In Home Office vs. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, 'Lord Atkin's speech ... is not to be treated as if it was a statute definition; it will require qualification in new circumstances, Megarry, J. in (1971) 1 WLR 1062 observed: 'One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament'. And in Herrington vs. British Railways Board (1972 (2) WLR 537) Lord Morris said:

'There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning in the matter of applying precedents have become locus classicus : Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.

Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.'

14. The same view was taken by the Hon’ble Supreme Court in Sarva Shramik Sanghatana (K.V.), Mumbai vs. State of Maharashtra & Ors, reported in AIR 2008 SC 946 and in Government of Karnataka & Ors. vs. Gowramma & Ors, reported in AIR 2008 SC 863.

15. Thus, in view of the above decisions including in D. M. Nagaraja and Reddeiah, (supra), it cannot be said that the decision in Rekha's case (supra) or for that matter other citations referred by learned counsel for petitioner, is/are an authority on the extreme proposition canvassed. The judicial review of the subjective satisfaction reached by the detaining authority, therefore, will have to be tested on case to case basis and if tangible justification is spelt out in the grounds of detention, it is imminent to issue order of preventive detention qua him that would be permissible and legitimate.

16. From the decisions in the case of D.M. Nagaraja and Reddeiah, (supra) it is clear that each case will have to be decided on its own facts. The facts in the present case are that in the preamble which is reflected in paragraph 01 of the grounds of detention, it is seen that the detenu is involved two FIRs and two confidential reports registered with Police Station Rajouri.

17. The grounds of detention clearly advert to the fact that Sr. Superintendent of Police, Rajouri has provided a certified copy of Forensic Science Laboratory report and as per the report of Forensic Science Laboratory the material recovered from the possession of detenu is ‘Charas’ which is a Narcotic/psychotropic substance. The grounds of detention also reveals that Senior Superintendent of Police, Rajouri vide communication No. PA/PSA/17/5677-80/C dated 20.06.2017 has recommended that the detenu may be detained under the provisions of Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 for maximum period.

18. Perusal of the detention record reveals that the detenu, at the time of execution of detention order, was provided copy of the detention order, copy of the grounds of detention, and other material that finds mention in the detention order, to enable the detenu to make a representation against his detention. The detenu has also been informed that he can file representation against his detention. The grounds of detention are definite, proximate and clear from any ambiguity. The detenu is informed with sufficient clarity what actually weighed with the Detaining Authority while passing the detention order. The Detaining Authority has narrated facts and figures that made the authority to exercise its powers under section (3) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, and record subjective satisfaction that the detenu was required to be placed under preventive detention in order to prevent him from committing the offence under the provisions of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988. The detaining authority has informed the detenu that the detenu is an accused in as many as in 02 criminal cases, involving drug peddling and other anti-social activities, which has caused great threat to the health, wealth and welfare of the people especially young generation in the State in general and District Rajouri in particular, besides activities of detenu have deleterious effect on the National and State economy and that detenu was bailed out but every time he recycled into the illicit trade and has not bothered to mend his activities. So viewed the detenu is not to be heard saying that any of his Constitutional and Statutory rights have been violated while the detention order in question was slapped on him and thereafter executed.

19. It needs to mention here that on the recommendation of the Advisory Board, the order and period of detention of the detenu has been rightly confirmed/approved by the Government vide Order No. Home/PBV/2149 of 2017 dated 13th of November, 2017, detaining the detenu for a period of one year in Central Jail, Kotbhalwal, Jammu.

20. For all what has been discussed above, the petition is dismissed.

21. Registry is directed to return the detention record to Mr. Amit Chopra, learned GA.
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