HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case No:-HCP No. 16/2025 CM No. 274/2025 Vishal Kataria …..Petitioner(s) Through: Mr.Gagan Oswal, Advocate. Vs UT of J&K and Ors. .…. Respondent(s) Through: Mrs. Monika Kohli, Sr. AAG. Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE ORDER(ORAL) 10.07.2025 1. Article 226 of the Constitution of India has been invoked by the petitioner in the instant petition for seeking quashing of the detention Order No. PITNDPS 55 of 2024 dated 26.12.2024 (for short, the impugned order) passed by the respondent 2-Divisional Commissioner, Jammu (for short, „the detaining authority‟) under and in terms of the Prevention of Illicit Trafficin Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred to as the, “Act of 1988”). 2. The petitioner has challenged the impugned order while urging the following grounds in the instant petition:- (a) Because no copy of the dossier, FIR and other documents including the bail orders as stated in the detention order have been served upon the petitioner, though in the detention order it has been mentioned otherwise because the only detention order has been served, therefore, in absence of the documents as relied upon by the detaining authority, the petitioner has been deprived of making effective representation, therefore, the order impugned is illegal and deserves to be quashed. (b) Because the respondent no. 2 has passed the detention order on the ground of involvement of the petitioner in FIR's with respect to which the petitioner has already been enlarged on bail and as such, the order impugned is bad in law and deserves to be set aside. (c) Because the Respondents have refused to consider the representation of the petitioner and on this ground also the impugned order is required to be quashed. Sr. No.07 2 HCP No. 16/2025 (d) Because no satisfaction has been recorded by respondent No. 2 that the normal punitive law has failed to prevent the illegal activities of the petitioner which renders necessary the issuance of detention order, as such, the order impugned is bad in law. (e) Because no time limit has been communicated to the petitioner within which representation is required to be made and on this pretext also the detention order is required to be quashed. 3. Counter affidavit to the petition has been filed by the respondent 2, wherein it has been, inter-alia, stated that upon receipt of dossier dated 14.12.2024 from the Senior Superintendent of Police, Jammu, the detaining authority carefully examined the same and the relevant record attached thereto and found the preventive detention of the petitioner imperative, as the petitioner despite being involved in criminal cases relating to drug activities even after obtaining the bail therein the said cases again got involved in illicit trafficking of drugs, posing a serious threat to the public order, inasmuch as health and welfare of the people, necessitating his detention under the Act of 1988, as ordinary law was found to have failed to deter the petitioner from indulging in such activities. It is further stated that at the time of execution of the impugned order upon the petitioner, the Executing Officer furnished all the relevant documents along with the detention order, grounds of detention consisting of 69 leaves to the petitioner and explained him the same in Urdu language, which he fully understood, inasmuch as also came to be informed about his right of making a representation before the Government/Home Department as well as the detaining authority against his detention. It is further stated that upon submission of representation by the petitioner before the detaining authority, a report was sought from the SSP, Jammu, who vide his Letter dated 10.01.2025 opposed the revocation of the order of detention, whereupon the detaining authority for the betterment of the society rejected the said representation of the petitioner. 3 HCP No. 16/2025 It is being also stated that the impugned detention order was confirmed by the Home Department on 30.01.2025 after the receipt of the opinion of the Advisory Board on 21.01.2025. Heard learned counsel for the parties and perused the record. 4. Mr. Gagan Oswal, learned counsel appearing for the petitioner while making submissions in line with the case set up in the petition filed by the petitioner would contend that the petitioner was not furnished the copy of the dossier, FIR and other documents including the bail order upon execution of the impugned order, but only the detention order came to be served upon the petitioner, which non-furnishing of the rest of the documents deprived the petitioner of making an effective representation against his detention. Learned counsel would also submit that the impugned order came to be passed against the petitioner by the detaining authority on account of the involvement of the petitioner in the FIRs, in which FIRs, the petitioner stands enlarged on bail and that the detaining authority did not record any compelling reasons while detaining the petitioner that the punitive law has failed to deter the petitioner from indulging in drugs related activities. It is further contended by the learned counsel for the petitioner that the petitioner submitted a representation through his mother on 02.01.2025 against his detention received by the respondents on 04.01.2025, yet the said representation was not considered in accordance with the provisions of the Act of 1988 and in tune with the mandate of Article 22(5) of the Constitution. Learned counsel for the petitioner would, thus, insist that the impugned order is not legally sustainable and is liable to be quashed. 4 HCP No. 16/2025 5. Ms. Monika Kohli, learned Sr. AAG, appearing for the respondents while opposing the submissions of learned counsel for the petitioner, would submit that the petitioner came to be furnished the entire material relied upon by the detaining authority during the execution of the impugned order, which material consisted of 69 leaves and in token of its acceptance, the petitioner executed a receipt as well before the Executing Officer annexed as Annexure-I to the counter affidavit. Ms. Kohli also contend that the detaining authority after assuming subjective satisfaction on the basis of material furnished to it by the Sponsoring Agency qua the illegal drug related activities of the petitioner even after the release of the petitioner on bail, rightly ordered the detention of the petitioner under the Act of 1988, as the ordinary law had failed to deter the petitioner from getting involved in drug related activities. According to Ms. Kohli, the representation submitted by the petitioner through his mother came to be duly considered and rejected with due dispatch and without any delay by the detaining authority on 11.01.2025, which decision was even conveyed to the petitioner as well. 6. Insofar as the aforesaid pleas of the counsel for the petitioner of non-furnishing of entire documents to the petitioner by the detaining authority, inasmuch as, the plea of non-recording of compelling reasons for detention of the petitioner as also failure to derive subjective satisfaction by the detaining authority while detaining the petitioner under the Act of 1988 raised by the learned counsel for the petitioner is concerned, perusal of the record available on the file, inasmuch, the detention record produced by the learned counsel for the petitioner negates the said pleas, in that, indisputably, the petitioner has 5 HCP No. 16/2025 acknowledged to have received the material furnished to him by the Executing Officer upon execution of the impugned order, which material consisted of 69 leaves. Neither a Rejoinder affidavit to the counter affidavit filed by the respondents to the petition nor any documentary proof, in rebuttal thereto, report has been filed or produced by the petitioner after filing of the counter affidavit to dispel the said stand of the respondents. Further a closer examination of the grounds of detention, order of detention including the material furnished by the Sponsoring Agency to the detaining authority in connection with the detention of the petitioner would manifestly tend to show that the detaining authority came to be informed by the Sponsoring agency that the petitioner after his release on bail in FIRs, in which, he was found to be involved, continued to indulge in drug related illegal activities, whereupon the detaining authority, seemingly, has drawn its subjective satisfaction and has found the detention of the petitioner under the Act of 1988 warranted and imperative. Having regard to the aforesaid position obtaining in the matter, it cannot, thus, be said that the detaining authority acted in violation of the provisions of the Act of 1988 while detaining the petitioner and failed to draw subjective satisfaction thereof. Even otherwise also, law stands settled that Courts would not interfere with the detention order of the detenue, who has indulged in illicit traffic of narcotic drugs when there is sufficient material placed before the detaining authority for its subjective satisfaction to pass such detention order, in that, the drawing of subjective satisfaction has been held to be the domain of the detaining authority, prohibiting the Courts to interfere either with such subjective satisfaction or inasmuch as to sit in appeal thereof. 6 HCP No. 16/2025 7. Insofar as the aforesaid last plea urged by learned counsel for the petitioner qua the representation filed by the petitioner through his mother is concerned, the stand taken by the respondents in the counter affidavit, inasmuch as, the detention record produced by the learned counsel for the respondents would indisputably reveal that the said representation stands received by the respondents. However, a deeper examination of the detention record would interestingly show that although the said representation stands addressed to the detaining authority and the detaining authority seemingly has considered and rejected the said representation in terms of order dated 11.01.2025, yet perusal of the said order, manifestly, shows that the representation has not been considered and decided by the detaining authority independently inasmuch ason merits, but primarily on the basis of a reply sought in this regard by the detaining authority from the SSP, Jammu, who had furnished a report/reply thereto on 10.01.2025 to the detaining authority, reiterating therein, in essence, the contents of the dossier furnished by the SSP concerned to the detaining authority prior to the passing of the impugned order by the detaining authority. Although neither the provisions of Article 22(5) of the Constitution nor the provisions of the Act of 1988 provide any particular mode or mechanism for consideration and disposal of a representation of a detenue and also though no rigid formula can be said to be applicable for consideration and disposal of such representation, yet law enjoins upon the authority vested with the power to consider and dispose of such representation independently with complete and utmost application of mind, inasmuch as, expeditiously. In the instant case, however, the detaining authority has not done so, as the said consideration order reveals that the same consists of six paras and in the first four paras true, the 7 HCP No. 16/2025 passing of order of detention against the petitioner is referred, whereas in the second para, the filing of representation by the petitioner through his mother is mentioned as also the grounds pleaded therein and in the third para, the sending of the said representation to the SSP, Jammu vide Letter dated 04.01.2025 is mentioned and in the fourth para, receipt of the Communication dated 10.01.2025 from the SSP concerned is mentioned and in sub-paras (a) & (b) of the said fourth para, reference to the contents of the said letter dated 10.01.2025 is made and in the fifth para, it is recorded “that the ground pleaded in the representation are not substantiated by any material evidence and the grounds are not cogent enough to outweight the grounds of detention order issued by this office.” No independent analysis qua the said representation has been made by the detaining authority. The said rejection order cannot, but said to be non-speaking and cryptic in nature, thus, a flagrant non-compliance of the mandate of Article 22(5) of the Constitution. Here, it would be appropriate and advantageous to refer to an important observation made by the Hon’ble Apex Court in connection with the preventive laws in case titled as, “Jaseela Shaji Vs. Union of India and Ors., reported in 2024 9 SCC 53”, wherein at para-35, following has been observed and noticed:- “35. In the case of Ranu Bhandari (supra), this Court observed thus: “25. Keeping in mind the fact that of all human rights the right to personal liberty and individual freedom is probably the most cherished, we can now proceed to examine the contention advanced on behalf of the parties in the facts and circumstances of this case. But before we proceed to do so, it would be apposite to reproduce hereinbelow a verse from a song which was introduced in the cinematographic version of Joy Adamson's memorable classic Born Free which in a few simple words encapsulates the essence of personal liberty and individual freedom and runs as follows: “Born free, as free as the wind blows, As free as the grass grows, Born free to follow your heart. 8 HCP No. 16/2025 Born free and beauty surrounds you, The world still astounds you, Each time you look at a star. Stay free, with no walls to hide you, You're as free as the roving tide, So there's no need to hide. Born free and life is worth living, It's only worth living, if you're born free.” The aforesaid words aptly describe the concept of personal liberty and individual freedom which may, however, be curtailed by preventive detention laws, which could be used to consign an individual to the confines of jail without any trial, on the basis of the satisfaction arrived at by the detaining authority on the basis of material placed before him. The courts which are empowered to issue prerogative writs have, therefore, to be extremely cautious in examining the manner in which a detention order is passed in respect of an individual so that his right to personal liberty and individual freedom is not arbitrarily taken away from him even temporarily without following the procedure prescribed by law.” 8. It will not be out of place to mention here that besides the aforesaid order of rejection of representation of the petitioner by the detaining authority vide order dated 11.01.2025, further perusal of the detention record produced by the learned counsel for the respondents, interestingly, would reveal that the said representation also stands considered and rejected by the respondent 1 as well and an information in the said regard stands provided to the detaining authority vide Letter dated 21.01.2025, suggesting that even otherwise also, the representation of the petitioner though stated to have been considered by respondent 1 as well, yet the same has been considered and decided belatedly, which belated consideration of representation has been held by the Hon’ble Apex Court in series of judgments to be fatal to the detention of a person detained under preventive law. Thus, what emanates from the above analysis qua the representation of the petitioner, the respondents in general have faulted in law, rendering the impugned detention order legally unsustainable. 9. Viewed thus, for what has been observed, considered and analyzed hereinabove, the instant petition succeeds, as a consequence whereof, the 9 HCP No. 16/2025 impugned Order No.PITNDPS 55 of 2024 dated 26.12.2024passed by the respondent 2-Divisional Commissioner, Jammu is quashed with a direction to the respondents including the concerned jail authority to release the petitioner from preventive detention forthwith. 10. The detention record produced by Ms. Kohli, learned Sr. AAG, appearing on behalf of the respondents is returned back in the open Court. 11. Disposed of along with connected application(s). (Javed Iqbal Wani) Judge Jammu 10.07.2025 Ram Krishan Whether the order is speaking? Yes Whether the order is reportable? Yes Ram Krishan 2025.07.15 09:19 I attest to the accuracy and integrity of this document