LPA No. 330/2024 Sr. No. 39 Regular IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR LPA 330/2024 in[HCP 173/2024] NARGIS AKHTAR …Petitioner(s)/appellant(s) Through: Mr. M. Ayoub Bhat, Advocate & Ms. Mahajabeen Bhat, Advocate Vs. UNION TERRITORY OF J AND K AND ORS ...Respondent(s) Through: Mr. Ilyas Nazir Laway, GA & Ms. Rahella Khan, Assisting Counsel CORAM: HON’BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE ORDER 06.03.2025 1. The present appeal has been preferred by the appellant who is aggrieved by the order dated 29-10-2024 passed by the learned Single Bench in HCP No. 173/2024, whereby the habeas corpus petition moved by the appellant herein was dismissed. 2. Briefly, the facts of the case are as follows: 3. The appellant was detained under the provisions of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 vide detention order No. DIVCOM- “K”/80/2024 dated 18-04-2024 passed by the Divisional Commissioner, Kashmir. Page 2 of 6 LPA No. 330/2024 4. Learned counsel for the appellant has argued that error has crept into the order passed by the learned Single Bench as it has not examined the order of detention in the right perspective. He has also argued that the cognizance of the fact that the appellant was enlarged on bail by the learned court below ought to have been spelt out specifically in the order of detention and its non- mention in the said order of detention only goes to show non- application of mind on the part of the detaining authority. 5. He has further argued that there is no finding as to how the detenue/appellant herein is a threat to the society based only upon a single case of alleged recovery of contraband from her husband and her who were travelling in a vehicle and whose apprehension was pursuant to intimation given by co-accused who were apprehended first. 6. He has further stated that the appellant is a lady in her early 20s and is married to Showkat Ahmad Sheikh who, it appears, is a co-accused in the case against the detenue. 7. Per contra, learned counsel for the Union Territory has strongly defended the order passed by the detaining authority. He has referred to that part of the order passed by the learned Single Bench in order to impress upon this court that specific mention of the appellant having been granted bail in the criminal case not having been recorded in the order of detention is not LPA No. 330/2024 fatal to it as the dossier prepared by the police specifically mentions that the appellant was granted bail by the learned court below and that the dossier itself was considered by the detaining authority before the order of detention was passed. 8. 8. Heard the learned counsel for the parties and perused the record. 9. It is necessary to refer to the grounds of detention dated 18-04- 2024. The said order of detention refers to the appellant as an active member of a larger drug mafia relentlessly involved in drug trafficking not only in the local area of her residence but also in surrounding areas and that her activities are posing a serious threat to health and welfare of the people especially the youth of District Baramulla and also have an adverse impact on the national economy. 10. This itself reflects that the material is actually only an allegation and, that too, very generalized. It fails to be specific with regard to the larger drug mafia which the appellant is allegedly a part of and which are the local areas or surrounding areas where she has been indulging in drug trade. 11. Thereafter, it refers to an FIR No. 82/2023 in which she was arrested and 320 grams of Charas like substance was allegedly recovered from her possession in the said case. Thereafter, relying upon the said dossier, the detaining authority holds that A) that the appellant is part of an active member of larger LPA No. 330/2024 drug mafia operating not only in the local area of her residence but beyond it B) that her involvement in the FIR case establishes the fact that she has no remorse or realization of the ill effects of her activities. C) that the appellant is supplying drugs against hefty amounts to gullible youth which in turn has exposed them to different kinds of immoral and illegal criminal tendencies and as such the youngsters resort to theft and other illegal activities in order to purchase the drugs from her D) the drug mafia of which the appellant is allegedly a member of is hell-bent to spoil the life and career of younger generations by selling drugs to them and lastly E) that the appellant has adopted drug trafficking as a regular source of earning and that she has been motivating the youth of that area to consume drugs. 12. The above reflects that the allegations are so generalized and vague that it is impossible for the detenue to give a precise representation denying the said allegations. An opportunity to represent against preventive detention must be real and not fanciful. The detenue must know precisely the reasons why the person is being detained using a preventive detention law which is an exception to the general law. 13. Thereafter, the rest of the order of detention is so generalized that it has more of moral reasoning rather than actual grounds LPA No. 330/2024 reflecting the imminent danger posed by the appellant to the society at large if not taken into preventive custody. 14. This court is in agreement with the learned counsel for the State that a number of cases is not required for forming a subjective opinion by the detaining authority and even in the absence of a criminal case, an order of preventive detention may still be sustained. 15. Though, as mentioned by this court hereinabove, that it agrees with the argument on law put forth by the learned counsel for the State, the same has to be seen in the backdrop of the facts and circumstances of every case. The order of detention must reflect unambiguously, precisely and unequivocally those grounds which are precise, on the basis of which the subjective opinion of the detaining authority is arrived at. Vagueness and generalized allegations in the grounds of detention directly go to infringe the rights of the detenue under Article 21 of the Constitution. 16. Under the circumstances, this Court is of the opinion that the order of detention bearing No. DIVCOM-“K”/80/2024 dated 18- 04-2024 passed by the Divisional Commissioner, Kashmir deserves to be set aside and is set aside. Consequently, the judgment impugned dated 29.10.2024 is also set aside. The appeal is allowed. LPA No. 330/2024 17. The appellant shall be set forth at liberty forthwith. 18. Disposed of. (PUNEET GUPTA) (ATUL SREEDHARAN) JUDGE JUDGE SRINAGAR 06.03.2025 Aamir ‘PS’ Whether the order is speaking Yes/No Whether approved for reporting Yes/No Amir Rashid Sofi I attest to the accuracy and authenticity of this document 07.03.2025 13:24