HCP No. 180/2024 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP No. 180/2024 Reserved on: 10.04.2025 Pronounced on: 25. 04.2025 Abrar Ahmad Bhat, Aged 28 years S/o Mohammad Aslam Bhat R/o Aragam District Bandipora through his father Mohammad Aslam Bhat ……...Petitioner(s) Through: Mr. Wajid Haseeb, Advocate Versus 1. Principal Secretary to Government (Home Dept), J&K Civil Secretariat Srinagar/Jammu. 2. Divisional Commissioner, Kashmir at Srinagar 3. Sr. Superintendent of Police, Bandipora 4. Superintendent Central Jail, Kote Bhalwal, Jammu ……Respondent(s) Through: Ms. Nadiya Abdullah, Assisting Counsel vice Mr. Mohsin Qadri, Sr. AAG CORAM: HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE J U D G M E N T 1. Challenge is made in this petition, by the father of the detenue and the quashment is sought of order No. Divcom-“K”/127/2024 dated 06.05.2024, for short “impugned order”, issued by the Divisional Commissioner, Kashmir- respondent No.2 herein, whereby one Abrar Ahmad Bhat Son of Mohammad Aslam Bhat Resident of Aragam, District Bandipora, herein after referred to as “detenue” has been placed under preventive detention, on the grounds taken in the memo of petition. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 180/2024 BRIEF FACTS 2. The detenue is alleged to be involved in commission of offence punishable in terms of Sections 8/22-29 of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS), in terms of FIR No. 06/2023 of Police Station, Aragam. The allegation against the detenue is that he is a notorious illicit drug peddler having developed contacts with drug peddlers’ operative in District Bandipora and started selling drugs among the youth of the district. The detenue is active member of a drug Mafia, who are involved in drug trafficking; the activity of the detenue had posed serious threat to the health and welfare of the people and have an adverse impact on the national economy; the detenue had been arrested on 02.03.2023 along with another associate in case FIR No. 06/2023 of Police Station, Aragam under Sections 8/22-29 of NDPS Act and 144 Sammpex Capsules were recovered from the detenue’s possession, which were later on confirmed to be “Tramadol hydrochloride, diecelmine hydrocholoride and acetaminophen. 3. The petitioner in the instant petition pleads that the detenue is an employee by profession, working as a Medical Record Assistant in SKIMS, Soura, having been falsely implicated in case FIR No. 06/2023 under Sections 8/22-29. It is further pleaded that the detenue after his arrest on 02.03.2023, had moved an application for bail along two other applicants and the learned Sessions Judge, Bandipora after consideration, allowed the application and admitted the applicants to interim bail in terms of order dated 24.03.2023, by observing that the rigour of Section 37 of NDPS Act is not attracted in the case, as the recovered contraband quantity does not fall within the commercial quantity being only 05 grams in weight. The petitioner inter alia challenges that impugned order on the grounds that the contraband allegedly recovered from the possession of the detenue did not Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 180/2024 fall within the category of commercial quantity being only 05 grams of weight; the detenue has been granted interim bail by the Court of competent jurisdiction in the same case in which the impugned order has been passed; the detenue has no previous history of being involved in any such offence and the instant case also does not connect the detenue with the commission of offence as the Police case on its own showing alleges that the contraband was recovered from a Car in which the detenue along with two other persons was travelling; the detaining authority has not derived its satisfaction vis-à-vis the commission of offence committed by the detenue, as the detenue had been granted interim bail by the Court of competent jurisdiction in the case on the basis whereof the impugned order has been issued; the detenue has not been provided the material forming basis for issuance of impugned order; the allegations against the detenue are non-specific, bald assertions which could not have been effectively represented against and in that view of the matter, the detenue has been prejudiced as the right of filing representation against the impugned order has been curtailed; the right to personal liberty is a very valuable right, which cannot be curtailed without there being compelling reasons for doing so; the detaining authority has not satisfied itself as to how the ordinary law was not sufficient to prevent the detenue from acting in a manner prejudicial to the welfare of general public. 4. 4. Upon notice, the respondents appeared and filed the counter affidavit, resisting the claim of the petitioner by stating therein that no legal, fundamental or statutory right of the detenue has been violated; the detenue had developed contracts with drug Mafia and it was necessary to prevent him from carrying on the drug peddling activities and, as such, the impugned order is within the four corners of law having been issued after due application of mind and after examining the Police dossier, the respondents further state in the counter affidavit that the grounds of detention are precise, proximate and relevant, no vagueness Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 180/2024 being attached therewith. It is also pleaded in the counter affidavit that the grant of bail does not preclude the detaining authority to exercise its jurisdiction to detain such person under preventive law. 5. Heard learned counsel for the parties, perused the material on record, including the detention record made available by the learned counsel for the respondents. 6. The admitted fact of the matter is that the detenue has been detained under preventive detention for his involvement in case FIR No. 06/2023 of Police Station, Aragam under Sections 8/22-29 of NDPS Act, in which case the detenue has been granted bail by the Court of competent jurisdiction in terms of order dated 24.03.2023. It is also not disputed that the detenue has been apprehended in the said criminal case on 02.03.2023, and later on released pursuant to the bail granted by the Court of competent jurisdiction in terms of order dated 24.03.2023 and subsequently the impugned order has been issued in connection with the same FIR on 06.05.2024, meaning thereby that the detenue was in custody for a period of 22 days in connection with his involvement in case FIR No. 06/2023, during which time the respondents did not feel it necessary to detain him under preventive law, so much so that the detenue was released on interim bail on 24.03.2023, continued to remain at large for more than a year till issuance of impugned order and during which time also the respondents did not at all bother to pass the impugned order. It is not the case of the respondents that the detenue was not available with them, which formed a ground for such delayed issuance of detention order, therefore, there is absolutely no justification coming forth from the respondents as to why the preventive detention came to be pressed into service with such a delayed dispatch. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 180/2024 7. It is also ironic to observe that the learned Sessions Judge, Bandipora in terms of the order dated 24.03.2023, while admitting the detenue along with two others alleged to be involved in case FIR No. 06/2023 under Sections 8/22- 29 of NDPS Act, observed in categoric terms that the quantity of the alleged recovered contraband does not come within the definition of commercial quantity in terms of the provisions of the NDPS Act, as the rigour placed by Section 37 of the said Act is not attracted, while the respondents passed the impugned order against the detenue for his involvement in the said FIR, portraying him as a notorious drug peddler. 8. The Apex Court in case titled Joyi Kitty Jozeph Vs. Union of India and Ors., reported as 2025 Livelaw (SC) 298, has deprecated the practice of passing the preventive detention orders in respect of cases on the similar lines, in which the criminal Court has granted bail. It would be profitable to reproduce paragraphs 21 and 22 of the said Judgment herein:- “21 The criminal prosecution launched and the preventive detention ordered are on the very same allegations of organised smuggling activities, through a network set up, revealed on successive raids carried on at various locations, on specific information received, leading to recovery of huge cache of contraband. When bail was granted by the jurisdictional Court, that too on conditions, the detaining authority ought to have examined whether they were sufficient to curb the evil of further indulgence in identical activities; which is the very basis of the preventive detention ordered. The detention order being silent on that aspect, we interfere with the detention order only on the ground of the detaining authority having not looked into the conditions imposed by the Magistrate while granting bail for the very same offence; the allegations in which also have led to the preventive detention, assailed herein, to enter a satisfaction as to whether those conditions are sufficient or not to restrain the detenu from indulging in further like activities of smuggling. 22. We, hence, allow the appeal and set aside the order of detention. The detenu shall be released forthwith, if still in custody.” 9. In another case titled Sushanta Kumar Banik Vs. The State of Tripura, reported as 2022 Livelaw (SC) 813, has observed in paragraphs 22 and 23 as follows:- Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 180/2024 “22. As noted above, in the case on hand, in both the cases relied upon by the detaining authority for the purpose of preventively detaining the appellant herein, the appellant was already ordered to be released on bail by the concerned Special Court. Indisputably, we do not find any reference of this fact in the proposal forwarded by the Superintendent of Police, West Tripura District while requesting to process the order of detention. The reason for laying much stress on this aspect of the matter is the fact that the appellant though arrested in connection with the offence under the NDPS Act, 1985, the Special Court, Tripura thought fit to release the appellant on bail despite the rigours of Section 37 of the NDPS Act, 1985. Section 37 of the NDPS Act, 1985 reads thus: “Section 37. Offences to be cognizable and non- bailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)— (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless— (i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.” 23. A plain reading of the aforesaid provision would indicate that the accused arrested under the NDPS Act, 1985 can be ordered to be released on bail only if the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. If the appellant herein was ordered to be released on bail despite the rigours of Section 37 of the NDPS Act, 1985, then the same is suggestive that the Court concerned might not have found any prima facie case against him. Had this fact been brought to the notice of the detaining authority, then it would have influenced the mind of the detaining authority one way or the other on the question whether or not to make an order of detention. The State never thought to even challenge the bail orders passed by the special court releasing the appellant on bail.” 10. Having regard to the above discussion, the Court does not feel it necessary to go to the other aspects of the case vis-à-vis the non-supply of material and depriving the detenue to file representation against his detention as the impugned order cannot be withstand the test of law on this ground that Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 180/2024 the impugned order has been issued in disregard of the bail granted by the Court of competent jurisdiction to the detenue in a case which did not even attract the rigour of Section 37 of the NDPS Act. 11. The impugned order has been issued on 06.05.2024, and is valid till 06.05.2025, therefore, the impugned order will outlive its life by the time the instant Judgment would be pronounced. 12. Viewed thus, the petition is allowed and the impugned detention order No. Divcom-“K”/127/2024 dated 06.05.2024, issued by Divisional Commissioner, Kashmir- respondent No.2 herein, whereby one Abrar Ahmad Bhat Son of Mohammad Aslam Bhat Resident of Aragam, District Bandipora was detained, is quashed and the respondents are directed to release the detenue forthwith. 13. Registry is directed to return the detention record to the learned counsel for the respondents against receipt. 14. Disposed of. (MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 25.04.2025 “Mohammad Yasin Dar” Whether the Judgment is reportable: Yes/No. Whether the Judgment is speaking: Yes/No. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document