IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 20.12.2024 Pronounced on: 03.01.2025 HCP No.210/2024 PARVAIZ AHMAD KHAN ...Petitioner(s) Through: - Ms. Suwaiba, Advocate. Vs. UT OF J&K & ORS. …Respondent(s) Through: - Mr. Mubashir Majid Malik, Dy. AG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1) The Divisional Commissioner, Kashmir, in exercise of powers conferred under Section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred as to “the Act of 1988”), has, vide order No.DIVCOM-“K”/53/2024 dated 16.04.2024, ordered preventive detention of Parvaiz Ahamd Khan (hereinafter referred to as the detenue), in order to prevent him from committing any of the acts within the meaning of the Act of 1988. 2) By the instant petition, veracity and legality of the impugned detention order has been challenged by the petitioner contending that the impugned detention order has been passed without application of mind as the grounds of detention are vague, non-existent and stale on which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been 2 HCP No.210/2024 complied with in the instant case, inasmuch as whole of the material has not been provided to the petitioner. It has been further urged that there has been non-application of mind on the part of detaining authority while passing the impugned detention order as the detenue was already admitted to bail in the FIR, mention whereof has not been made in the grounds of detention but the said fact is not mentioned in the grounds of detention. 3) The respondents, in their counter affidavit, have contended that the detenue developed contacts with drug peddlers operative in Sopore area and started selling drugs among the youth of the said area. It has been further contended that the detenue was a part and active member of a larger drug mafia who were relentlessly involved in drug trafficking not only in Sopore but also in the surround arears and that his activities had posed serious threat to the health and welfare of the people, especially youth of Sopore which had an adverse impact on the national economy. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same was read over and explained to him and that all the statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority while passing the impugned detention order. To substantiate their stand taken in the counter affidavit, the respondents have produced the detention record. 3 HCP No.210/2024 4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments, was on the following grounds: (i) That there has been non-application of mind on the part of the detaining authority as the detenue has already been admitted to bail in FIR No.19/2023 registered with P/S Bomai, but this fact has not been mentioned in the grounds of detention. (ii) That the material that formed basis of the grounds of detention has not been supplied to the petitioner. (iii) That the petitioner had made a representation to the respondents against the impugned order of detention but the result thereof has not been conveyed to him. 5) So far as the first ground of challenge is concerned, from a perusal of the material available on file, the ground regarding non-application of mind on the part of the detaining authority appears to be forceful, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had already been admitted to bail in FIR No.19/2023 registered with P/S Bomai in terms of the order passed by the court of competent jurisdiction. The petitioner has placed on record a copy of order dated 21.12.2023 passed by learned Additional Sessions Judge, Sopore, whereby he has been enlarged on bail in a case arising out of FIR No.19/2023 for offences under Section 8/22 of NDPS Act of P/S Bomai. The non-mentioning of this important fact in the grounds of detention exhibits non-application of mind on the part of detaining 4 HCP No.210/2024 authority. In fact, it is clearly mentioned in the dossier of detention that the petitioner has been enlarged on bail in FIR No.19/2023 of P/S Bomai but the detaining authority seems to have overlooked this important aspect of the matter while framing the grounds of detention. This shows that the detaining authority has not meticulously examined the record while passing the impugned order of detention which renders the same unsustainable in law. I am supported in my aforesaid view by the judgment of the Supreme Court rendered in the case of Anant Sakharam Raut v. State of Maharashtra & Ors. AIR 1987 SC 137. 6) So far as the next ground of challenge is concerned, the respondents have not brought on record anything that would suggest that the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has been furnished to the petitioner. The respondents have produced the detention record but there is nothing in the said record that would go on to show that any material whatsoever has been supplied to the petitioner. Obviously, the petitioner has been hampered by non-supply of the material in making an effective representation against his detention. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. Furnishing of whole of the material is a necessary requirement for enabling the detenue to make an effective representation against the order of detention. I am supported in my aforesaid view by the judgments of the Supreme Court in Sophia Gulam 5 HCP No.210/2024 Mohd. Bham v. State of Maharashtra & ors (AIR 1999 SC 3051), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors (AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and others”, (1982) 3 SCC 440. 7) The next ground projected by the petitioner is that he had submitted a representation against his detention but the same has not been considered by the respondents as no result of consideration has been conveyed to him. 8) It has been specifically pleaded by the petitioner in ground (g) of his petition that he made a representation before the detaining authority but the same has not been considered. These assertions have gone unrebutted as there is no denial to the same by the respondents in the counter affidavit. In fact, the detention record reveals that the representation of the detenue has been received by the Home Department and the same was forwarded to the detaining authority in terms of communication dated 27.05.2024, informing the said authority that the representation of the petitioner after being considered has been found without any merit at this stage. The detention record, however, does not suggest that the result of consideration of the said representation, if any, has been conveyed to the petitioner. The non-consideration or an unreasonably belated consideration of the representation indisputably amounts to violation of constitutional safeguards provided by the provisions of Article 22(5) of the Constitution, which in turn renders the 6 HCP No.210/2024 detention unsustainable in law. In my said view, I am supported by the judgments of the Supreme Court in the cases of Rahmatullah Vs. State of Bihar and Ors., 1979 (4) SCC 559, and Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others, (2021) 20 SCC 98. 9) For the afore-stated reasons, the petition is allowed and the impugned detention order is quashed. The respondents are directed to release the petitioner from the preventive custody forthwith, provided he is not required in connection with any other case. 10) The record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 03.01.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 03.01.2025 12:53