HCP No. 217/2024 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP No. 217/2024 Reserved on: 15.04.2025 Pronounced on: 24.04.2025 Firdous Ahmad Sheikh, Aged 42 years S/o Mohammad Yousuf Sheikh R/o Manchewa Yaripora through his brother Muzaffar Ahmad Sheikh, Aged 30 years ……...Petitioner(s) Through: Mr. S. R. Hussain, Advocate Versus 1. Union Territory of Jammu and Kashmir through Principal Secretary to Government (Home Dept), J&K Civil Secretariat Srinagar/Jammu. 2. Divisional Commissioner, Kashmir at Srinagar 3. Sr. Superintendent of Police, Kulgam 4. Superintendent Central Jail, Kote Bhalwal, Jammu ……Respondent(s) Through: Mr. Zahid Qais, GA CORAM: HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1. Petitioner, brother of Firdous Ahmad Sheikh S/o Mohammad Yousuf Sheikh R/o Manchewa Yaripora, Kulgam, hereafter, for short as detenue has challenged and sought quashment of order No. DIVCOM-“K”/63/ 2024 dated 18.04.2024, for short “impugned order”, issued by the Divisional Commissioner, Kashmir- respondent No. 2 herein, whereby the detenue has been placed under preventive detention, on the grounds taken in the memo of petition. BRIEF FACTS 2. The detenue is alleged to be involved in commission of offence punishable in terms of Sections 8/21-22 of Prevention of Illicit Traffic in Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 217/2024 Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS), in terms of FIR Nos. 186/2019 of Police Station, Jammu and 50/2022 u/s 8/15 of Police Station Behibagh. The allegation against the detenue is that he is a notorious illicit drug peddler having developed contacts with drug peddlers’ operative in District Kulgam and started selling drugs among the youth of the district. The detenue is active member of a drug Mafia which is 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 apprehended with heroin in case FIR No. 186/2019 of Police Station, Jammu under Sections 8/21-22 of NDPS Act and with 07 kgs of Poppy Straw in case FIR No. 50/2022 of Police Station Behibagh. 3. The petitioner in the instant petition pleads that the detenue is a labourer by profession, having been falsely implicated in case FIR Nos. 186/2019 of Police Station Jammu and 50/2022 of Police Station Behibagh under Sections 8/21-22 & 8/15 of NDPS Act. It is further pleaded that the detenue after his arrest had been enlarged on bail in both the above FIRs by the competent court of jurisdiction. The petitioner inter alia challenges that impugned order on the grounds that the detenue has been granted interim bail by the Court of competent jurisdiction in the above referred cases on the basis whereof 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 in any way; 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 cases on the basis whereof the impugned order has been issued; the detenue has not been provided the material forming basis for issuance of Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 217/2024 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 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 Nos. 186/2019 of Police Station Jammu and 50/2022 of Police Station, Behibagh, in which cases the detenue has been granted bail by the Court of competent jurisdiction. It is Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 217/2024 also not disputed that the detenue has been apprehended in the said criminal case and later on released pursuant to the bail granted by the Court of competent jurisdiction and subsequent thereto the impugned order has been issued in connection with the same FIRs on 18.04.2024, meaning thereby that the respondents did not feel it necessary to detain the detenue under preventive law, during the time he was in custody in connection with his involvement in the FIRs supra, not even afterwards when the detenue was released on interim bail, continued to remain at large for 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. 7. The Apex Court in case titled Joyi KittyJozeph 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 Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 217/2024 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.” 8. 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:- “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 Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 217/2024 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.” 9. 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 the impugned order has been issued in disregard of the bail orders passed by the Court of competent jurisdiction to the detenue in the cases which formed basis for issuance of the impugned order. 10. The impugned order has been issued on 18.04.2024, and is valid till 18.04.2025, therefore, the impugned order will outlive its life by the time the instant Judgment would be pronounced. 11. Viewed thus, the petition is allowed and the impugned detention order No. DIVCOM-“K”/63/ 2024 dated 18.04.2024, issued by Divisional Commissioner, Kashmir- respondent No. 2, detaining Firdous Ahmad Sheikh S/o Mohammad Yousuf Sheikh R/o Manchewa Yaripora, Kulgam, is quashed and the respondents are directed to release the detenue forthwith. 12. Registry is directed to return the detention record to the learned counsel for the respondents against receipt. 13. Disposed of. (MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 24.04.2025 “Mohammad Yasin Dar” Whether the Judgment is reportable: Yes/No. Whether the Judgment is speaking: Yes. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document