HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 31.07.2025 Pronounced on: 14.08.2025 LPA No.92/2025 in (HCP 313/2024) Owais Ahmad Trag S/O Mohammad Ashraf Trag R/O Tral Payeen District Pulwama, Through his father Namely Mohammad Ashraf Trag …..Appellant(s)…. Through: Mr. Mohammad Ashraf Wani, Advocate. Vs 1. UT of J&K through Financial Commissioner, Home Department, Civil Secretariat Srinagar/Jammu 2. Divisional Commissioner, Kashmir .…. Respondent(s).. Through: Ms. Nawbahar, Assisting Counsel vice Mr. Mohsin Qadri, Sr. AAG Coram: HON’BLE THE CHIEF JUSTICE. HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE JUDGMENT PER OSWAL-J 1. The appellant-petitioner was detained by the respondent No.2- Divisional Commissioner, Kashmir (for short “detaining authority”) vide order dated 02.09.2024, in exercise of the powers vested in it under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs 2 LPA No. 92/2025 and Psychotropic Substances Act, 1988 (for short “the Act”). The order dated 02.09.2024 was assailed by the appellant-petitioner through the medium of HCP No. 313/2024, titled Owais Ahmad Tag Vs. Union Territory of J&K and another, but, remained unsuccessful as the petition preferred by the appellant-petitioner was dismissed by the learned Single Judge vide order dated 18.04.2025. 2. Aggrieved of the order dated 18.04.2025, the appellant-petitioner has preferred this intra court appeal on the following grounds:- (a) That the learned writ Court has failed to address the grounds urged in the HCP preferred by the appellant- petitioner; (b) That the learned writ Court has not addressed the issue raised by the appellant-petitioner that there was no live and proximate link between the alleged illegal activity attributed to the appellant-petitioner and order of detention because the last illegal activity attributed to the appellant- petitioner was in respect of the year 2023; and (c) That the writ Court has not addressed the ground urged in the HCP with regard to the filing of the representation and consideration thereof because the counter affidavit did not disclose that the representation was considered and the result was communicated to the appellant-petitioner. 3. Mr. Mohd Ashraf Wani, learned counsel for the appellant-petitioner has argued that the learned writ Court has not appreciated the contention raised by the appellant-petitioner that the grounds of 3 LPA No. 92/2025 detention were stale in nature and that the respondents had not considered the representation submitted by the appellant-petitioner. 4. Per contra, Ms. Nawbahar learned assisting counsel vice Mr. Mohsin Qadri, Sr. AAG appearing on behalf of the respondents has argued that the appellant-petitioner was ordered to be detained taking into consideration his illegal activities and the learned writ Court has rightly considered the issue raised by the appellant-petitioner and as such there is no illegality in the order impugned. 5. Heard counsel for the parties and perused the record including the detention record submitted by the learned counsel for the respondents. 6. The first contention raised by the appellant-petitioner is that the order of detention has been issued on the stale grounds and on such stale grounds, order of detention could not have been issued. The perusal of the grounds of detention reveal that the appellant-petitioner was arrested in FIR No.03/2021 under Section 8/29 NDPS Act and FIR No. 35/22 under Section 8/2022 NDPS Act. The last illegal activity attributed to the appellant-petitioner is in respect of FIR No.35/2022 registered in the year 2022 and thereafter no illegal activity has been attributed to the appellant-petitioner after the year 2022 till the passing of order of detention in the year 2024 warranting the detention of the appellant-petitioner. The record further depicts that the appellant- petitioner was enlarged on bail on 09.06.2023 in case FIR No.35/2022 of Police Station, Tral and order of detention came to be passed on 02.09.2024 meaning thereby that the appellant-petitioner was detained under the Act after one year and three months approximately, when he 4 LPA No. 92/2025 was released on bail and no illegal activity has been attributed to the appellant in interregnum. This delay of one year and three months is fatal to the case put forth by the respondents. 7. Law is well settled that there must be live and proximate link between the grounds of detention and the order of detention and once this link is snapped, the order of detention cannot be sustained. The order of detention by virtue of which the appellant-petitioner was detained, being based on stale incidents, is not sustainable on this ground only. 8. In Sama Aruna v. State of Telangana (2018) 1 SCC 150, the Apex Court examined a case where stale material was relied upon by the detaining authority. The Apex Court held that a preventive detention order that is passed without examining a live and proximate link between the event and the detention tantamount to punishment without trial. The Apex Court held: “17. We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. See G. Reddeiah v. State of A.P.(2012) 2 SCC 389 and P.U. Iqbal v. Union of India (1992) 1 SCC 434.” (emphasis added) 9. The other contention raised by the appellant-petitioner is that the issue in respect of non-consideration of the representation of the appellant- petitioner by the respondents has not been considered by the writ Court. 5 LPA No. 92/2025 10. The perusal of the writ petition preferred by the appellant-petitioner reveals that in Para No.8 of the writ petition it was specifically pleaded by the appellant-petitioner that he had filed representation through his father to the Additional Chief Secretary, Financial Commissioner, Home Department and it is contended by the appellant-petitioner that his representation was not considered by the respondents. 11. The reply filed by the respondents reveals that in Para 5 of the reply it is stated that the detenue did not prefer any representation in terms of the Act. The appellant-petitioner has placed on record the first page of the representation submitted to the Home Department, Government of UT of J&K along with postal receipt dated 10.09.2024. Thus, it becomes crystal clear that the representation was submitted by the appellant-petitioner to the respondents on 10.09.2024. Once the representation was sent through registered post then its receipt by the addressee, i.e., respondent No.1 can be presumed. Thus, it can safely be held that the representation submitted by the appellant-petitioner was not considered by the respondents. As such, the respondents are guilty of violating the mandate of Article 22(5) of the Constitution of India. Law in this regard is well settled and the Hon’ble Supreme Court in case titled Jayanarayan Sukul Vs. State of West Bengal reported in AIR 1970 SC 675 has held in paragraph No.21 as under:- “21. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be 6 LPA No. 92/2025 vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, 'the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.” (emphasis added) 12. In view of what has been discussed hereinabove, this appeal is allowed. The order dated 18.04.2025 passed by the learned Writ Court is set aside and the order of detention bearing No. DIVCOM- “K”/163/2024 dated 02.09.2024 passed by the respondent No.2- Divisional Commissioner, Kashmir is quashed. The appellant- petitioner is directed to be released forthwith if he is not required in any other case. 13. The detention record be returned to the learned counsel representing the respondents. 14. Disposed of as above. (RAJNESH OSWAL) (ARUN PALLI) JUDGE CHIEF JUSTICE Jammu 14.08.2025 Madan Verma-Secy Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No.