04 Regular HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP No. 201/2024 Mohd. Yousuf Ganie, Aged 42 years S/o Gh. Qadir Ganie, R/o Hassan Pora Tawila Bijbehara, District Anantnag Through his brother, Mohammad Imtiyaz Ganie, Aged 37 years ….. Petitioner (s) Through: Mr. Syed Faheem, Adv. vice Mr. Mukhtar Ahmad Makroo, Adv. V/s 1. Union Territory of Jammu and Kashmir through Principal Secretary to Govt., Home Department, Civil Secretariat, Srinagar/Jammu 2. Divisional Commissioner, Kashmir ….. Respondent(s) Through: Mr. Satinder Singh Kala, AAG Coram: Hon’ble Mr. Justice Rahul Bharti, Judge. JUDGMENT 06.03.2025 1. Through the medium of this petition under article 226 of the Constitution of India, the petitioner Mohd. Yousuf Ganie, acting through his brother Mohammad Imtiyaz Ganie, is seeking writ of habeas corpus for earning P a g e | 2 HCP No. 201/2024 restoration of his personal liberty which came to be curtailed on account of preventive detention jurisdiction exercised by the Divisional Commissioner, Kashmir under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act in short). 2. Senior Superintendent of Police (SSP), Anantnag, by virtue of letter No. CS/71/2023/12241-46 dated 08.07.2023 supplemented by letter No. Pros/D-10/2024/3649 dated 22.03.2024, submitted a dossier against the petitioner for seeking his preventive detention under PITNDPS Act, 1988 alleging that the petitioner’s activities were falling within the scope of mischief under PITNDPS Act, 1988 warranting his preventive detention. The dossier was submitted to the respondent No. 2-Divisional Commissioner, Kashmir. 3. Acting upon the said dossier, the respondent No. 2- Divisional Commissioner, Kashmir came to draw purported subjective satisfaction that the petitioner’s personal liberty warranted to be curtailed by his being a P a g e | 3 HCP No. 201/2024 part and active member of large drug mafia operating in the local area as well as District level, and therefore, passed an Order No. DIVCOM”K”/36/2024 dated 16.04.2024 ordering preventive detention of the petitioner and his detainment and lodgment in the Central Jail, Kot Bhalwal, Jammu. 4. The detention order came to be executed on 07.05.2024 when the petitioner came to be taken into custody by ASI Mirak Shah No. 60/Sec., EXK-911649 of the Police Station, Bijbehara who handed over the person of the petitioner to the Superintendent, Central Jail, Kot Bhalwal, Jammu on 07.05.2024 itself. 5. After having purportedly carried out the formality of handing over the detention order and the documents therewith to the petitioner and also explaining the grounds of detention and the order of detention to the petitioner in the language understood by him and against that taking signature of the petitioner to evidence that the petitioner’s procedural formality was complied by the Detention Warranting Executing Officer ASI Meeerk Shah, the P a g e | 4 HCP No. 201/2024 petitioner’s preventive detention commenced from 07.05.2024. 6. Aggrieved of his preventive detention, the petitioner, before coming forward with the institution of present writ petition, had acted promptly in addressing a written representation dated 20.05.2024 to the Principal Secretary to Government Home Department, Civil Secretariat, J&K, Srinagar against proper receipt No. 4449791 dated 21.05.2024 and also to respondent No. 2-Divisional Commissioner, Kashmir against proper receipt No. 4439722 dated 20.05.2024 7. The present writ petition came to be filed by the petitioner on 29th May 2024 challenging the preventive detention inter alia on the ground that the exercise undertaken at the end of the Senior Superintendent of Police (SSP), Anantnag and respondent No. 2-Divisional Commissioner, Kashmir was misconceived and unwarranted making out no case worth considering least subjecting the petitioner to suffer preventive detention under PITNDPS Act. P a g e | 5 HCP No. 201/2024 8. The petitioner came to agitate his grievances through representation dated 20.05.2024 filed by him that having gone begging for attention of the respondent No. 2- Divisional Commissioner, Kashmir and the Government of Union Territory of Jammu and Kashmir. 9. In his counter affidavit to the writ petition, the respondent No. 2-Divisional Commissioner, Kashmir, while trying to defend the exercise of jurisdiction under PITNDPS Act, 1988 against the petitioner by reference to his alleged activities in two criminal cases referable to FIR No. 203/2021 of Police Station, Bijbehara and FIR No. 132/2023 again of Police Station, Bijbehara, came to repeat the tone and tenor of the grounds of detention as well as the dossier. 10. However with respect to the pending representation of the petitioner against his detention, there is not even a whisper of reference in the entire counter affidavit which came to be submitted by the respondent No. 2 before this Court on 11.09.2024 meaning thereby that the petitioner’s representation dated 20th May 2024 remained gathering P a g e | 6 HCP No. 201/2024 dust both before the respondent No. 2-Divisional Commissioner Kashmir and the Home Department of Union Territory of Jammu and Kashmir to the extent that in the counter affidavit, the respondent No. 2-Divisional Commissioner, Kashmir has reckoned it not worth to advert himself about the status of the representation so made by the petitioner against his preventive detention. If this Court is not being apprised of the fate of the petitioner’s representation, then one can safely imagine the petitioner stood no chance of knowing any whisper about the same. 11. Right to representation against preventive detention is a constitutional right guaranteed under article 22 of the Constitution of India so as to ensure that in the event of cause being made out by the detenue against his preventive detention through his representation then the attention of the detention order making authority or detention approving authority is fully engaged to consider the representation and accord it a disposal by announcing its fate back to the detenue whose personal liberty is under peril and who is supposed to know as to what is the P a g e | 7 HCP No. 201/2024 outcome of the exercise of his constitutional right of making representation against his preventive detention to the authority concerned. 12. 12. The Hon’ble Supreme Court of India in case titled Ankit Ashok Jalan Vs. Union of India and Ors. reported in (2020) 16 SCC 127 came to hold that delay in consideration and responding with respect to pending representation involving time period of 1½ month as fatal to the preventive detention of the detenue. In this judgment, the Hon’ble Supreme Court of India has come to lay down four basic principles with respect to matter of dealing with the representation made against the preventive detention. 13. In the context of the present case, the safeguards prescribed with respect to the consideration of the representation made by the petitioner seems to have been given a go-bye, thereby rendering the preventive detention of the petitioner vitiated with illegality. 14. Otherwise also respondent No. 2-Divisional Commissioner, Kashmir in his preventive detention Order No. DIVCOM-“K”/36/2024 dated 16.04.2024 as well as P a g e | 8 HCP No. 201/2024 grounds of detention in support thereof has not spelled out as to why the first time dossier submitted by the Senior Superintendent of Police (SSP), Anantnag vide letter NO. dated 08.07.2023 remained un-responded from the end of the respondent No. 2 only waiting for subsequent letter No. dated 22.3.2024 to come from the end of Senior Superintendent of Police, Anantnag for resulting in issuance of preventive detention order against the petitioner. 15. Thus there is a very serious factual gap obtaining at the end of the respondent No. 2 in setting into effect PITNDPS Act against the petitioner which is an illegality and goes to the root of the preventive detention of the petitioner vitiating it thoroughly. 16. In view of the aforesaid, the preventive detention of the petitioner is held to be illegal warranting quashment of Order No. DIVCOM”K”/36/2024 dated 16.04.2024 read with approval/confirmation passed by the Government of Union Territory of J&K, which are accordingly quashed. The petitioner is ordered to be restored to his personal P a g e | 9 HCP No. 201/2024 liberty forthwith and for that purpose, the Superintendent, Central Jail, Kot Bhalwal, Jammu shall ensure that the petitioner is released from the Central Jail, Kot Bhalwal, Jammu as soon as possible upon receipt of a copy of this judgment 17. Detention record as produced is returned back to Mr. Satinder Singh Kala, learned AAG 18. Disposed of. (Rahul Bharti) Judge SRINAGAR 06.03.2025 Aasif Whether to be reported Yes/No Whether to be speaking Yes/No