HC quashes PSA of alleged Narco Smuggler

05/09/2021

JAMMU, Sept 4: Justice Ali Mohammad Magrey quashed the detention order No. DIVCOM "K"/154/2021 dated 8.3.2021 and ordered that detenue Mushtaq Ahmad Khawaja S/o Ghulam Nabi Khawaja R/o Tilwanpora Seelo, Sopore, District Baramulla, is directed to be released from preventive custody forthwith.
Justice Ali Mohammad Magrey observed that before taking note of the grounds of challenge taken in this petition to assail the impugned order, it would be appropriate to give brief resume of the activities of the petitioner-detenu, which have led him to preventive detention. As is born out from the grounds of detention served on the detenu, he is a habitual indulgent in the trade of narcotics and psychotropic substances. The detenu was selling drugs to the young generation in Sopore area and thereby making the school going children who are future of the nation as drug addicts. The detenu was involved in a case FIR No. 166/2020 u/s 8/22 NDPS Act registered at Police Station Sopore.
On 28.6.2020 detenu was arrested by police station Sopore at Model Town Nowpora crossing Sopore along with his other associates. At the time of arrest 120 Spasmo Proxyvon plus Capsules (Contraband drug) was recovered from his possession. During the investigation, the detenu's involvement was established and charge sheet was produced before the competent court of law. The detenu was bailed out in the aforesaid FIR but subsequently detained under Preventive Detention Law by the respondent no. 2 vide order No. DIVCOM "K'7154 /2021 Dated 8.3.2021.
Justice Magrey after hearing both the sides observed that The liberty of person (detenu) cannot be curtailed unless the guilt is proved against him. The concept of criminal law is that accused is presumed to be innocent till his guilt is proved. It appears that there is total non-application of mind on part of detaining authority while passing the detention order.
Justice Ali Mohammad Magrey while quashing the detention of the petitioner observed that the detenu was not supplied the materials relied upon by the detaining authority. The detenu was provided material in the shape of grounds of detention with no other material /documents, as referred to in the order of detention.
On these counts alone, in view of the above settled position of law, the detention of the detenu is vitiated, the detenu having been prevented from making an effective and purposeful representation against the order of detention.

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