HCP No. 235/2024 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR … HCP No. 235/2024 Reserved on: 15.04.2025 Pronounced on: 21.04.2025 Imran Ahmad Khan, Aged 28 years S/o Mohammad Zaman Khan R/o Noorkhah Boniyar, District Baramulla through his brother Waheed Ahmad Khan, aged 35 years. S/o Mohammad Zaman Khan R/o Noorkhah Boniyar, District Baramulla. ……...Petitioner(s) Through: Ms. Asifa Padroo, Advocate Versus 1. UT of Jammu and Kashmir through Principal Secretary to Government, Home Department J&K, Government, Civil Secretariat, Srinagar/Jammu. 2. Divisional Commissioner, Kashmir, Srinagar. 3. Superintendent, Central Jail Kote Bhalwal, Jammu ……Respondent(s) Through: Ms. Nadia Abdullah, Assisting Counsel vice Mr Mohsin Qadri, Sr.AAG CORAM: HON’BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1. Petitioner, brother of Imran Ahmad Khan Son of Mohd Zaman Khan Resident of Noorkhah Boniyar, District Baramulla, for short detenue, is challenging the detention order No. DIVCOM-K/66/2024 dated 18.04.2024, for short “impugned order”, issued by Divisional Commissioner, Kashmir- Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 235/2024 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 case of the petitioner is that the detenue has been arrested by the respondents on vague, irrelevant and non-existing grounds. The detenue is stated to be an innocent peace-loving citizen who has been falsely detained under preventive detention without any allegations against him warranting exercise of such power. The petitioner inter alia challenges the impugned detention order on the grounds that he has not been furnished all the material which has been relied upon by the detaining authority in making the detention order; the subjective satisfaction has not been derived by the detaining authority itself which is a sine qua non for passing the order of detention; the grounds of detention have been virtually formulated by the concerned SSP as the dossier submitted by the SSP is the verbatim copy of the grounds of detention; the respondent No. 2 in derogation of law, has not applied his mind as to whether the detention order was required to be passed against the detenue; no mention is made in the detention order or in the grounds of detention that the detenue has been granted bail by the competent court of law reflecting the non-application of mind by the detaining authorities to the facts of the instant case. 3. Per contra, it is stated by the respondents in their counter affidavit that the detenue was involved in the drug peddling activities and had turned into an active member of the drug trafficking network operating in district Baramulla, posing a serious threat on the socio-economic fabric of the society, as such, the police recommended his preventive detention and in this behalf submitted dossier supported by relevant material to the Divisional Commissioner, Kashmir, whereafter the record/material was examined and after finding the preventive Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 235/2024 detention of the detenue necessary, the order of detention was passed with the sole aim and object to prevent the detenue from indulging in the drug trafficking activities. 4. Heard learned counsel for the parties, considered the submissions made and perused the detention record. 5. The perusal of the material placed on record would reveal that the respondents have not effectively controverted the pleas raised by the detenue in his petition. Nothing is said by the respondents insofar as the plea of bail having been granted to the detenue by the competent court of jurisdiction is concerned. 6. It needs no emphasis that it is only after the detenue has the entire material available, that he can make an effort to convince the Detaining Authority and thereafter Government that their apprehensions, as regards his activities, are baseless and misplaced. 7. Another aspect of the matter is that the detenue has been enlarged on bail in case FIR no. 02/2023 of Police Station Bijhama u/s 8/22-29 NDPS Act, a criminal case, reference whereof is made in the grounds of detention and which presumably forms a significant ground for passing detention order against the detenue, has not at all been taken into consideration by the detaining authority as nothing in this behalf is stated anywhere in the detention order or in the grounds of detention. This would unambiguously suggest that the detaining authority has not applied its own mind while passing the detention order which is sufficient to render the detention order unsustainable in law. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 235/2024 8. It has consistently been held by the Supreme Court that non-application of mind on the part of the detaining authority, puts under cloud the whole detention order. This opinion derives support from a recent Judgment of Supreme Court delivered in case titled as Joyi Kitty Joseph v. Union of India & Ors., reported as {2025} SCR 419. Paragraphs 21 and 22 being relevant are taken note of:- “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 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.” 9. The respondents cannot be expected to take recourse to hollow assertions only, as they were obliged, by law, to see that the detenue has indeed indulged in the similar activities for which he was granted bail and there were reasonable prognosis about his future conduct, in light of the well- articulated circumstances, that similar activities would likely be repeated by the detenue. The Supreme Court has been consistently holding that the Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 235/2024 grounds of detention should always be proximate, pertinent and relevant as the subjective satisfaction of the detaining authority is not immune to judicial review though an exclusive domain of the detaining authority. 10. The respondents have not given any justification muchless a reasonable justification as to why the detenue was not put under preventive detention during the time the detenue was in their custody for a period of one month after having been arrested in case FIR no. 02/2023 on 19.03.2023 by police station Bijhama. The Apex Court in the case of Sama Aruna v. State of Telengana and &anr., (2018) 12 SCC 150, has observed in paragraph no. 24 as under: "24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The detenu could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and Ors. 9, this Court observed as follows:- “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed.” (Emphasis supplied) 11. The judgment of Apex Court of which reference and reliance is made by the learned counsel for the petitioner delivered in case titled Sushanta Kumar Banik v. State of Tripura & others reported as 2022 LiveLaw (SC) 813 Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document HCP No. 235/2024 is quite relevant to the facts of the instant. The paragraph No. 23 being relevant is taken note of herein, thus: “23. A plain reading of the aforesaid provision would indicate that the accused arrested under 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 brought to the notice of the detaining authority, then it would have influenced the mind of the detaining authority one way of 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.” 12. It has consistently been held by the Courts of law that the detention order cannot withstand the test of law if the non-application of writ large. Reliance in this behalf is placed on the recent Judgment of Supreme Court delivered in case titled as Joyi Kitty Joseph v. Union of India & Ors., reported as {2025} SCR 419. Paragraphs 21 and 22 being relevant are taken note of:- “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. 235/2024 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.” 13. 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. 14. Viewed thus, the petition is allowed and impugned detention order No. DIVCOM-K/66/2024 dated 18.04.2024, issued by Divisional Commissioner, Kashmir-respondent No. 2 detaining the detenue Imran Ahmad Khan Son of Mohd Zaman Khan Resident of Noorkhah Boniyar, district Baramulla, is quashed and the respondents are directed to release the detenue forthwith. 15. Registry is directed to return the detention record to the learned counsel for the respondents against receipt. 16. Disposed of. (MOKSHA KHAJURIA KAZMI) JUDGE Srinagar 21.04.2025 “Mohammad Yasin Dar” Whether the Judgment is reportable: Yes/No. Whether the Judgment is speaking: Yes/No. Mohammad Yaseen Dar I attest to the accuracy and authenticity of this document