HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT SRINAGAR Reserved on: 13.05.2025 Pronounced on: 06.06.2025 HCP No.385/2024 PARVAIZ AHMAD DAR ...PETITIONER(S) Through: - Mr. Shariq J. Reyaz, Advocate with Ms. Humaira Sajad, Advocate. Vs. U T OF J&K & ORS. …RESPONDENT(S) Through: - Mr. Mohsin S. Qadiri, Sr AAG with Ms. Nadiya Abdullah, Assisting Counsel. 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”/171/2024 dated 22.11.2024, ordered preventive detention of Parvaiz Ahmad Dar @ Pare Punjabi (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 P a g e | 2 has been further contended that the procedural safeguards have not been 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 has transformed into a notorious illicit drug peddler and became the principal dealer of narcotic drug and psychotropic substances in his area. It has been contended that the detenue was exposing the young and gullible minds including school going children to the heinous world of drugs and making them habitual drug addicts. It has been contended that the detenue is an active member of drug mafia, who is relentlessly involved in the drug trafficking in his area and outside State. It has been contended that the detenue was involved in case FIR No.142/2017 u/s 15,29,61,85 NDPS Act registered with Police Station Division No. 2 Pathankot Punjab and FIR No.271/2022 for offences under section 8/15,29 of NDPS Act registered with Police Station Budgam. 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 P a g e | 3 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 requirements and constitutional guarantees. In order to lend support to the stand taken in the counter affidavit, the respondents have produced the detention record. 4) I have heard learned counsel for parties and perused the record. 5) 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 the detenue has not been provided the whole of the material, which prevented him from making an effective representation against his detention. 6) The ground projected by the learned counsel for the petitioner that the detenue has been disabled from making an effective representation against the order of detention as whole of the material, that formed basis of the grounds of detention, has not been furnished to him, appears to have substance. A perusal of the detention record produced by learned counsel for the respondents reveals that the material is stated to have been received by the petitioner on 26.11.2024. Report of the Executing Officer in this regard forms part of the detention record, a perusal whereof reveals that it bears the signature of the petitioner and according to it, copy of detention warrant (01 leaf), notice of detention (01 leaf), grounds of detention (04 leaves) and copies of other relevant record, (04 leaves), total 10 leaves, have been supplied to him. P a g e | 4 7) If we have a look at the grounds of detention, it bears reference to FIR No.142/2017 u/s 15,29,61,85 NDPS Act registered with Police Station Division No. 2 Pathankot Punjab and FIR No.271/2022 for offences under section 8/15,29 of NDPS Act registered with Police Station Budgam. It was incumbent upon the respondents to furnish not only the copies of the FIRs but also the statements of witnesses recorded during investigation of the said FIRs and other material on the basis of which petitioner’s involvement therein is shown, which has not been done. All this material would run in dozens of pages and it is impossible that all this material would be covered in only four leaves. Even the copy of the dossier of detention has not been supplied to the petitioner. 8) Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention, has not been supplied to him, appears to be well-founded. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board, as a result of which his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. 9) It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless P a g e | 5 and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable in law. While holding so, I am fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others (AIR 1999 SC 3051) Ram Krishan Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. Etc. V. Government of Karnataka & Ors. (AIR 2009 SC 2184). 10) For the foregoing reasons, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from the preventive custody forthwith provided he is not required in connection with any other case. 11) The detention record be returned to the learned counsel for the respondents. (Sanjay Dhar) Judge SRINAGAR 06.06.2025 “Bhat Altaf-Secy” Whether the order is reportable: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 06.06.2025 02:26