HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP No. 231/2024 Pronounced on:13.03.2025 Tariq Ahmad Parray …. Petitioner/Appellant(s) Through:- Mrs. Asifa Padroo, Advocate V/s Union Territory of J&K and others …..Respondent(s) Through:- Mr. Mubashir Malik, DyAG CORAM: HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. The petitioner has challenged detention order No.DIVCOM “K”/94/2024 dated 25.04.2024 passed by the Divisional Commissioner, Kashmir (hereinafter to be referred to as „Detaining Authority‟) under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 to prevent him from committing any act within the meaning of illicit trafficking. The order of detention has been assailed by the petitioner (hereinafter to be referred to as „detenu‟) through his sister-Afroza Akhter. 02. The detention of the detenu has been ordered on the grounds that (i) the detenu was already arrested in FIR No. 187/2016 under Sections 8/22 NDPS Act of Police Station Magam, FIR No. 08/2020 under sections 8/22, 29 NDPS Act of Police Station Magam and FIR No. 129/2023 under Section 8/22, 29 NDPS Act of Police Station Magam; (ii) the detenu was already in custody in the aforesaid FIRs when the impugned order of detention has HCP No. 231/2024 been passed, that too, without application of mind; (iii) the Detaining Authority has not arrived at its subjective satisfaction to detain the detenu in terms of the aforesaid Act; (iv) the allegations mentioned in the grounds of detention have no nexus with the detenu and has been fabricated by the Police in order to justify the illegal detention; (v) the allegations are vague, non-existent and no prudent man can make a representation against the order; (vi) That all the documents relied upon by the Detaining Authority have not been provided to him, which has affected his right to make an effective representation; (vii) The detenu was not informed the time within which he had to make a representation to the Detaining Authority as well as the Government; (viii) the grounds of detention were not explained to him in his local language which he understands (ix) the detenu was acquitted of the charges leveled against him in the FIRs, however, this fact has not been reflected in the order of detention. 03. The respondents have filed their counter affidavit as well as produced the detention record. The respondents submit that the detenu poses a great threat to the health and welfare of young generation in particular and to common man in general. The order of detention was executed on 03.05.2024 and the contents of grounds of detention were read over and explained to the detenu in the language which he understood. They further submit that Advisory Board examined the case of detenu and found sufficient grounds for detention of the detenu. 04. Heard learned counsel for the parties at length and also perused the record. HCP No. 231/2024 05. As per the dossier of the Sr. Superintendent of Police, the detenu was involved in FIR No. 187/2016 under Sections 8/22 NDPS Act of Police Station Magam, FIR No. 08/2020 under sections 8/22, 29 NDPS Act of Police Station Magam and FIR No. 129/2023 under Section 8/22, 29 NDPS Act of Police Station Magam. The Detaining Authority, after considering the dossier of activities submitted by the Police, has arrived at its subjective satisfaction to prevent the detenu from further committing any offences and accordingly, issued the order of detention. 06. As per the grounds of detention, the detenu is the active member of large drug mafia who was relentlessly involved in drug trafficking not only in local area but at district level, as such, detenu had adopted the drug trafficking as his regular source of earnings and had been motivating and influencing the young minds into the drug consumption, thus, the Detaining Authority had arrived at its subjective satisfaction with regard to the same. The detenu has raised number of grounds in this petition but the detention is unsustainable. 07. Learned counsel for the detenu has stressed on first ground regarding non-application of mind that the detention of the detenu has been based on FIR No. 08/2020, however, the detenu has already been acquitted in the said FIR and this important fact has not been noticed by the Detaining Authority while passing the order of detention. Perusal of the material on record reveals that this ground regarding non-application of mind has force. The Detaining Authority has based its subjective satisfaction on three FIRs i.e., FIR No. 187/2016, FIR No. 8/2020 & FIR No. 129/2023. The Detenu has been acquitted in FIR No. 08/2020. The judgment passed by the Court of HCP No. 231/2024 learned Additional Sessions Judge, (Fast Track Court), Budgam in case titled UT of J&K vs. Nazir Ahmad Khan & Tariq Ahmad Parray, arising out of FIR No. 08/2002, acquitting the detenu is placed on record. The grounds of detention do not reflect that the detenu has been acquitted in FIR No. 08/2020 under Sections 8/22 and 29 of NDPS Act. The non-consideration and mentioning of this important and vital fact in the grounds of detention reflects total non-application of mind on the part of the Detaining Authority. The Detaining Authority, thus, has not examined the record meticulously while arriving at subjective satisfaction and passed the order of detention which renders the same unsustainable. 08. It was next argued that the detenu was not provided all the material that formed basis of the grounds of detention thereby violative his right of making an effective representation. The receipt of grounds of detention and other relevant material reveals that the material provided to the detenu was detention order (01 leaf), notice of detention (01 leaf), grounds of detention (03 leaves), dossier of detention (Nil), copies of FIR, statement of witnesses and other related relevant documents (01 leaf). The detenu has not been provided the dossier of detention and even all the other relevant material has not been provided to him. The detention of the detenu was based on dossier of the Sr. Superintendent of Police, District Budgam dated 26.08.2023. This has not been provided to the detenu. The detenu must know what weighted with the Detaining Authority while passing the order of detention. The Detaining Authority has also not provided all the other relevant material as only one leaf was provided. HCP No. 231/2024 09. The detenu cannot make an effective representation/purposeful representation until all the material in exercise of his constitutional and statutory rights guaranteed to him. The failure to supply the material violates the constitution right guaranteed to him. Article-22 of the Constitution renders the detention illegal and unsustainable. 10. Failure by the Detaining Authority to supply material relied upon at the time of passing the detention order renders the detention order unsustainable in law as held in view of the law laid down in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others, reported as AIR 1999 SC 3051, the Apex Court observed as under:- “... The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language...” 11. In Thahira Haris etc. etc. Vs. Government of Karnataka and others, reported as AIR 2009 Supreme Court 2184, the Hon‟ble Supreme Court has held as under: “27. There were several grounds on which the detention of the detenu was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenu becomes illegal and detention order has to be quashed on that ground alone. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention.” HCP No. 231/2024 12. The detenu has made a representation before the detaining authority but the same has not been considered till date. The record reveals that the representation has not been considered till date, this infringes the valuable right of the detenu. The Hon‟ble Supreme Court has time and again held that the representation submitted by the petitioner must be considered and disposed of at the earliest. In “Sarabjeet Singh Mokha vs. The District Magistrate, Jabalpur and others”, reported as 2021 SCC Online SC 1019, it has held as under: “22……….….Article 22(5) reflects a keen awareness of the framers of the Constitution that preventive detention leads to the detention of a person without trial and hence, it incorporates procedural safeguards which mandate immediacy in terms of time. The significance of Article 22 is that the representation which has been submitted by the petitioner must be disposed of at an early date. The communication of the grounds of detention, as soon as may be, and the affording of the earliest opportunity to submit a representation against the order of detention will have no constitutional significance unless the detaining authority deals with the representation and communicates its decision with expedition.”.” 13. In view of the aforesaid discussion and without adverting to the other grounds raised in this petition, this petition is allowed. Accordingly, impugned detention order No. DIVCOM.”K”/94/2024 dated 25.04.2024 passed by the Divisional Commissioner, Kashmir, is quashed. The detenu- Tariq Ahmad Parray, is directed to be released from the custody forthwith if he is not otherwise required in any other case. 14. Detention record be handed over to learned counsel for the respondents by the Registry forthwith. (Sindhu Sharma) Judge Srinagar : 13.03.2025 Ram Murti Whether approved for speaking : Yes/No Whether approved for reporting : Yes/No