S. No. 4 Regular list HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR HCP 285/2024 BARKAT AHMAD DAR …Petitioner(s) Through: Mr. N. A. Tabassum, Advocate. Vs. UNION TERRITORY OF J AND K AND ANR ...Respondent(s) Through: Mr. Jehangir Ahmad Dar, GA. CORAM: HON’BLE MR. JUSTICE RAHUL BHARTI JUDGE ORDER 18.03.2025 1. Heard Mr. Nazir Ahmad Tabassum, Advocate for the petitioner, Mr. Jehangir Ahmad Dar, learned Government advocate for respondents. 2. Through the medium of this petition instituted on 08.08.2024, the petitioner came forward seeking setting aside of preventive detention and the restoration of his personal liberty by issuance of writ of habeas corpus under article 226 of the Constitution of India. 3. The detention of the petitioner came to take place on the basis of an exercise at the end of the Senior Superintendent of Police (SSP) Sopore, who, vide his letter No. Pros/PIT- NDPS/2024/17873-75 dated 03.05.2024, came to submit a dossier to the respondent No. 02-Divisional Commissioner, Kashmir thereby soliciting preventive detention of the petitioner by projecting and portraying the petitioner to be falling within the scope of mischief of section 3 of the Prevention of Illicit Traffic in Narcotics Drugs and Psychotropic Substances (PIT NDPS in short). 4. In the dossier, the antecedents of the petitioner to be on the bad side came to be reflected by reference of FIR No. 56/2022 under section 8/15 of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985 and FIR No. 81/2022 under section 8/15 NDPS Act, 1985, both registered by the Police Station, Tarzoo, and in which, the petitioner came to be subjected to bear a criminal trial before the contempt court of law. 5. By reference to both these criminal cases, the SSP Sopore in his dossier came to make a passing reference with a one liner that the petitioner has managed to get bail in two referred cases. 6. Said two FIRs were lodged against the petitioner for being found in alleged possession of contraband of FUKKI of 10 Kg and 12 Kg respectively. Other than these two FIRs, SSP Sopore had no other reference point at his disposal against the petitioner to set up a case of preventive detention except sweeping and generalised characterisation of the petitioner to be a part of the drug mafia operative and operating in the area of Sopore. 7. The respondent No. 2-Divisional Commissioner, Kashmir at his end, by reference to said dossier, came to draw his subjective satisfaction on the basis of grounds of detention formulated and thereupon passed an Order No DIVCOM-“K”/134/2024 dated 10.05.2024 thereby reckoning the petitioner to be a person amenable to the rigour of section 3 of PIT NDPS Act, 1988, and, therefore, directed the detention and lodgement of the petitioner in the Central Jail Kotbhalwal, Jammu, for a period to be specified by the Government/ Advisory Board. 8. In the grounds of detention, the Divisional Commissioner, Kashmir missed out in making any whisper of reference as to the aspect of petitioner being on bail in said two criminal cases. 9. The SSP Sopore in his dossier came to use of very objectionable expression that the petitioner managed to get bail in the two FIRs, as if, seeking and earning of bail by an accused in criminal case is matter of management not cherished by the Law and Enforcement Agencies, whereas grant of bail is a criminal case to an accused under custody is a matter of discretion which is exercised by criminal court on the basis of settled principles of law and keeping in view the facts and circumstances of a given case and, thus, is not managed and granted on just asking of the accused. 10. The Divisional Commissioner Kashmir at his end, for the reasons best known to him, skipped over this aspect that in case if the petitioner has been enlarged on bail that too in ongoing criminal cases relatable to said two FIRs then, whether SSP Sopore by setting up a case for preventive detention of case was meaning to overreach the criminal court and its indulgence in the matter of enlarging the petitioner on bail. 11. Surely, after the enlargement of the petitioner on bail in reference to the two cases, no act of omission or commission came to be referred in the dossier as well as in the grounds of detention against the petitioner meaning thereby, it is only on account of petitioners’ implications in the two said FIRs that preventive detention of the petitioner came to be solicited and consequently ordered. 12. Thus, the very exercise at the end of SSP Sopore as well as at the end of the Divisional Commissioner, Kashmir in subjecting the petitioner to suffer preventive detention was nothing but an attempt to overreach the ordinary procedure of law intended to deal with an offender of law. 13. In view of the aforesaid consideration, the detention Order No. DIVCOM-“K”/134/2024 dated 10.05.2024 against the petitioner read with consequent confirmation and approval by the Government of UT of Jammu and Kashmir are held to be bad in the eyes of law warranting quashment and are, accordingly, quashed. 14. The petitioner is directed to be set to his personal liberty by the Superintendent of the concerned Jail wherein the petitioner is held up. 15. Disposed of. (RAHUL BHARTI) JUDGE SRINAGAR 18.03.2025. Hilal Ahmad