IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 08.05.2025 Pronounced on: 30.05.2025 HCP No.260/2024 ABDUL SALAM DAR ...Petitioner(s) Through: - Mr. Asif Iqbal, Advocate. Vs. UT OF J&K & ORS. …Respondent(s) Through: - Mr. Jehangir Ahmad Dar, GA. 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”/140/2024 dated 16.05.2024, ordered preventive detention of Abdul Salam Dar (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.260/2024 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 have resisted the petition by filing their reply affidavit, wherein they have contended that the detenue, a drug addict, has been indulging in drug trafficking in Tehsil Awantipora, which has posed serious threat to the health and welfare of the people of said area besides endangering national economy and social stability. It has been contended that the detenue was carrying on this illicit trade thereby driving the youth of the area towards the drug menace and destroying their life and career by making them vulnerable to crime and criminality. It has been contended that the detenue was involved in case FIR No.189/2023 for offences under section 8/20 NDPS Act registered with Police Station Awantipora. It has been further contended that with a view to prevent the detenue from committing any offence under the provisions of the Act of 1988, his detention was ordered in terms of the impugned order. It is pleaded that whole of the material that formed basis of the grounds of detention has been furnished to the detenue and the same was read over and explained to him. It has been averred that the impugned detention order has been passed after adhering to all legal, statutory 3 HCP No.260/2024 requirements and constitutional guarantees. In order to buttress their stand taken in the counter affidavit, the respondents have produced the detention record. 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 ground 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.189/2023 registered with P/S Awantipora, but this fact has not been mentioned in the grounds of detention. 5) 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.189/2023 registered with P/S Awantipora in terms of the order passed by the court of competent jurisdiction. A perusal of the record reveals that the petitioner has been granted bail in the aforesaid FIR by the Court of Principal Sessions Judge Pulwama, in terms of order dated 17.10.2023, but this fact has not been made mention of in the grounds of detention by the detaining authority. The non-mentioning of this important fact in the grounds of detention despite the bail order being available in the detention record, exhibits non-application of mind on the part of detaining authority. The detaining authority seems to have overlooked this important aspect of the matter while framing the grounds 4 HCP No.260/2024 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 judgments of the Supreme Court rendered in the cases of Anant Sakharam Raut v. State of Maharashtra & Ors. AIR 1987 SC 137, Rekha v. State of T.N. (2011) 5 SCC 244, and Rushikesh Tanaji Bhoite v. State of Maharashtra and others, (2012) 2 SCC 72. 6) For the foregoing 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. 7) The record be returned to learned counsel for the respondents. (Sanjay Dhar) Judge Srinagar 30.05.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 30.05.2025 03:49