LPA No. 309/2024 Page No. 1 of 8 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR LPA No. 309/2024 In HCP No. 91/2024 Reserved On: 03.02.2025 Pronounced On: 13.02.2025 Mohammad Tajamul Masoodi, Age 45 Years S/O: Peer Badru Ud Din R/O Bagander Pampore, Pulwama Through his wife: Rifat Masoodi W/O: Mohammad Tajamul Masoodi R/O : Bagander Pampore, Pulwama … Appellant(s) Through: Mr. Syed Riyaz Hussain, Advocate Vs. 1. Union Territory of J&K through Financial Commissioner to Government (Additional Chief Secretary) Home Department J&K at Civil Secretariat, Srinagar/Jammu. 2. Divisional Commissioner, Kashmir, Srinagar. 3. Senior Superintendent of Police, Baramulla. 4. Superintendent Central Jail, Kotebhalwal, Jammu. 5. State House Officer, Police Station, Baramulla. ...Respondent(s) Through: Mr. Ilyas Laway, GA CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR, JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE LPA No. 309/2024 Page No. 2 of 8 JUDGMENT Per: Sanjeev Kumar-J 1. This intra-court appeal by the appellant, Mohammad Tajamul Masoodi, is directed against an order and judgment dated 31st October, 2024, passed by the learned Single Judge of this Court [“the writ Court”] in HCP No. 91/2024 titled “Mohammad Tajamul Masoodi Vs. Union Territory of Jammu and Kashmir and Others, whereby the writ Court has dismissed the habeas corpus petition filed by the appellant to throw challenge to his detention made by the Divisional Commissioner, Srinagar, under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 [“ the Act of 1988”]. 2. The order impugned is assailed by the appellant on several grounds. However, before adverting to the grounds of challenge urged by Mr. Syed Riyaz Hussain, learned counsel for the appellant, we deem it appropriate to take note of few facts germane to the disposal of this appeal. 3. The appellant is facing trial in case FIR No. 54/2017 under Section 8/21(c), 29 NDPS Act and 201 RPC registered at Police Station, Uri, in the Competent Court of criminal jurisdiction. The appellant was released on bail by the learned Single Judge of this Court vide order dated 15th January, 2024, passed in Bail Application No. 18/2023. While the appellant was on bail, the Senior Superintendent of Police, Baramulla, vide his communication No. Lgl/PIT-NDPS/2024/386-89 dated 14th February, 2024, produced a dossier along with other connected documents in respect of the appellant before the Divisional Commissioner, Kashmir LPA No. 309/2024 Page No. 3 of 8 and sought his detention under the Act of 1988. The Divisional Commissioner, Kashmir, having gone through the material brought to his notice by the Senior Superintendent of Police, Baramulla, formed the opinion that with a view to preventing the appellant from committing an offence under the Act of 1988, it had become imperative to place the appellant under the preventive detention in exercise of powers conferred under Section 3 of the Act of 1988. 4. Consequently, vide order No. DIVCOM –“K”/20/2024 dated 19th March, 2024, the Divisional Commissioner, Kashmir, placed the appellant under preventive detention. The grounds of detention, running into three pages, are also claimed to have been served on the appellant. 5. Feeling aggrieved by his detention, the appellant filed HCP No. 33/2024 and sought writ of certiorari for quashing the detention order. The petition was resisted by the respondents. In the reply affidavit filed by the Divisional Commissioner, Kashmir, the stand was taken that all the procedural safeguards as envisaged under the Act of 1988 and the Constitution of India, had been observed in letter and spirit, and that the order of detention was perfectly legal, justified and in consonance with the detention law. 6. The writ Court having considered the rival contentions of the parties and the material on record, came to the conclusion that the order of detention impugned in the habeas corpus petition was legally sound and did not suffer from any legal or procedural infirmity. The writ Court, accordingly, dismissed the petition filed by the appellant. This is LPA No. 309/2024 Page No. 4 of 8 how the appeal is before us, and the appellant seeks his release from the preventive detention of the respondents. 7. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the judgment passed by the writ Court is flawed and, therefore, cannot sustain in law. The grounds of detention served upon the appellant are vague in nature and lack specific particulars. It is not in dispute that the appellant was arrested along with his associate, Musadiq Afzal Masoodi, in FIR No. 54/2017 in July, 2017 for commission of offences punishable under Section 8/21(c), 29 of the Act of 1988. The police after completing the investigation, presented the case before the Competent Court where the appellant, along with his associate(s) is facing trial. One of the associates of the appellant who was arrested along with him, namely Musadiq Afzal Masoodi, succeeded in persuading the Hon’ble Supreme Court to grant him bail pending trial, as is evident from the order of the Hon’ble Supreme Court dated 9th August, 2023. 8. On the basis of parity with Musadiq Afzal Masoodi, the appellant moved an application for grant of bail before the learned Single Judge of this Court under Section 439 of the Code of Criminal Procedure, 1973. Vide order dated 15th January, 2024, the appellant was also released on bail. While the appellant along with Musadiq Afzal Masoodi was on bail, the appellant came to be detained pursuant to the order of detention impugned before the writ Court on the following grounds:- (i) You are the part and active member of a large drug mafia who is relentlessly involved in drug trafficking, not only in the local area of your LPA No. 309/2024 Page No. 5 of 8 residence, but are involved in such illegal activities across borders within and outside the country. (ii) Your involvement in a FIR under NDPS Act is manifestation of the fact that you have no remorse or realization of ill effects of your activities. (iii) You are supplying drugs against hefty amounts to the gullible youth, which in turn has exposed them to different kinds of immoral and illegal criminal tendencies and as such resort to thefts and other illegal activities in order to purchase drugs from you. (iv) The drug mafia of which you are an active member is hell bent to spoil the life and career of younger generation by selling drugs to them. (v) You have adopted the drug trafficking as your regular source of earning and have been motivating and influencing the young minds into the drug consumption. 9. From the perusal of allegations constituting the grounds of detention served upon the appellant, it is abundantly clear that the appellant remained in incarceration since July 2017 up to 15th January, 2024, in FIR No. 54/2017 and upon his release on bail by the Single Bench of this Court on 15th January, 2024, the appellant has not been found involved in any fresh instance of commission of an offence under the Act of 1988. The appellant has been taken into preventive custody on the basis of bald allegations that he is an active member of a larger drug mafia which is involved in drug trafficking at the district level. The allegations lack material particulars, inasmuch as neither the alleged drug LPA No. 309/2024 Page No. 6 of 8 mafia has been named nor any member of such mafia has been indicated to be associated with the appellant. 10. It is true that on 2nd July, 2017, the District Police, along with officials of Security Wing and Custom Department recovered 66.580 Kgs of Brown Sugar carried from Chakoti, Muzaffarabad, POK. During the investigation, it was found that the said consignment was ordered by the appellant with the active aid of his associate, namely Musadiq Afzal Masoodi. Regarding this occurrence, FIR No. 54/2017 under Section 8/21(c) NDPS Act was registered at the Police Station Uri. The appellant, along with his associate (Musadiq Afzal Masoodi), were arrested in July, 2017, itself and remained in custody for almost six and half years before they were released on bail. There is absolutely no material on record to indicate that after his release, the appellant was involved in any activity, which would amount to commission of offence under the Act of 1988. 11. On the similar grounds, the associate of the appellant, namely, Musadiq Afzal Masoodi was also detained by the Divisional Commissioner, Srinagar, vide its letter dated 18th October, 2023. The detention of Musadiq Afzal Masoodi became subject matter of challenge in HCP No. 138/2023, which was allowed by the learned Single Bench of this Court vide order dated 6th September, 2024. The case of the appellant is squarely covered by the judgment passed in the case of Musadiq Afzal Masoodi. 12. It is trite law that the grounds of detention must be precise and unambiguous so that the detenue is in a position to make an effective representation against his detention. The charges must be specific LPA No. 309/2024 Page No. 7 of 8 regarding date, time and the specific act attributed to the detenue. Absent such material particulars, the detenue cannot make an effective representation against the charge/grounds of detention to the Competent Authority, which is a constitutional right vested in the detenue detained under the preventive detention law. 13. The subjective satisfaction arrived at by the Detaining Authority in absence of any material to prima facie support the allegations against the detenue, indicates non-application of mind on the part of Detaining Authority and, therefore, vitiates the detention. The liberty of a citizen cannot be curtailed on mere allegations which are not substantiated by any material on record. The right of making an effective representation against the detention conferred upon the detenue is infringed if he is not provided the requisite material with specific particulars. 14. Viewed from any angle, we do not find the impugned order passed by the writ Court sustainable in law. That apart, a person similarly situated with the appellant, namely, Musadiq Afzal Masoodi, who was also detained on similar grounds has already been set at liberty by this Court while allowing HCP No. 138/2023 on 6th September, 2024. The appellant cannot be treated differently from a person who is similarly situated and was allegedly an equal partner in the crime registered as FIR No. 54/2017. 15. For all these reasons, we find merit in this appeal, and the same is accordingly allowed. The order of detention bearing No. DIVCOM –“K”/20/2024 dated 19th March, 2024, passed by the Divisional LPA No. 309/2024 Page No. 8 of 8 Commissioner, Kashmir, is quashed. The appellant shall be set at liberty, if he is not required in any other case. 16. Disposed of along with connected CM(s). (PUNEET GUPTA) (SANJEEV KUMAR) JUDGE JUDGE SRINAGAR: 13.02.2025 “Mir Arif” (i) Whether the Judgment is Reportable? Yes/No. (ii) Whether the Judgment is speaking? Yes/No. MIR ARIF MANZOOR I attest to the accuracy and authenticity of this document 13.02.25