PITNDPS Act- Obligatory For Detaining Authority To Communicate Grounds Of Detention Within 5-15 Days: Jammu & Kashmir & Ladakh High Court

The Jammu & Kashmir and Ladakh High Court had held that it is obligatory upon the authorities under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 to communicate grounds of detention to accused within a maximum period of five days and in exceptional cases, fifteen days.

The Court was considering a Petition challenging detention order whereby the petitioner was taken into preventive custody in order to prevent him from engaging in illicit trafficking in narcotic drugs and psychotropic substances.

The bench of Justice Sanjay Dhar held, "From the foregoing analysis of law on the subject, it is manifest that delaying of decision on the representation of the detenu amounts to infringement of a valuable right which is available to a detenu in terms of provisions contained in Section 3 of the PITNDPS Act, which makes it obligatory on the detaining authority to communicate to the detenu the grounds on which the order of detention has been made within a maximum period of five days, and in exceptional case within a period of 15 days, from the date of detention and to afford him the earliest opportunity of making representation against the order of detention. The purpose of furnishing the grounds of detention within a maximum period of fifteen days is to enable a detenu to make a representation against the order of detention at the earliest opportunity."

The Petitioner was represented by Advocate Mehtab Gulzar, while the Respondent was represented by Senior Additional Advocate General Monika Kohli.

Facts of the Case

The impugned order of detention was challenged by the detenu on the ground that there were no compelling reasons for the detaining authority to pass the said order, as the detenu was already facing trial in two criminal cases in which he was admitted to bail. It was submitted that instead of seeking cancellation of bail of the detenu, the detaining authority resorted to the extraordinary law relating to preventive detention without there being any compelling circumstances. It was further contended that whole of the material forming the basis of the grounds of detention was not furnished to the detenu, as a result whereof, he could not make an effective and suitable representation against the order of detention. It was also contended that on September 20, 2024, the detenu made a representation through his father before Respondent No.1, which was delivered to the said Respondent on September 24, 2024, but the same was not considered. Counsel for Petitioner argued that this violated his statutory and constitutional right.

Reasoning By Court

The Court, at the outset, noted that the representation was addressed to the Commissioner Secretary to the Government, Home Department, J&K, which later informed the detaining authority that the representation of the detenu has been considered and found to be without any merit. A copy of the said communication was endorsed to the Superintendent, District Jail Poonch, with a request to inform the detenu.

".......It is, thus, clear that the representation of the detenu was considered by the respondents after more than one and a half months. It is also apparent from the record that no intimation regarding rejection of the representation was given to the detenu. The record only shows that intimation regarding rejection of the representation was given to the Superintendent of the concerned Jail and the detaining authority. There is nothing in the record to show that a copy of the communication dated 07.11.2024 was handed over to the detenu. Neither report of any official of the Jail to this effect is available in the detention record, nor have the respondents pleaded so in their counter affidavit. In fact, in their counter affidavit, the respondents have categorically denied having received any representation from the detenu....," the Court observed.

It noted that the question before it is as to whether consideration of the representation after about one and a half months from the date of its receipt, and the non-furnishing of intimation regarding its rejection to the detenu, satisfies the requirements of law.

The Court referred to the Supreme Court's decision in Sarabjeet Singh Mokha Vs. District Magistrate, Jabalpur and others and observed, "...a duty is cast upon the detaining authority or the government to consider the said representation at the earliest opportunity. Failure to decide the representation of a detenue within a reasonable time in an expeditious manner strikes at the valuable right of a detenu emanating from the provisions of Article 22 of the Constitution."

"In the present case, as already indicated above, the representation of the petitioner has been considered by the government after one and a half months of its receipt. This slackness on the part of respondents to take a decision on the representation of the detenu renders the impugned order of detention illegal," the Court further observed.

The Petition was accordingly allowed.

Cause Title: Sarfaraz Ahmed vs. UT of Jammu and Kashmir and others

Click here to read/ download Order