HCP No.393/2024 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on: 22.05.2025 Pronounced on: 11.07.2025 HCP No.393/2024 MUZAFFAR AHMAD BHAT ...Petitioner(s) Through: - Mr. Shah Ashiq, Advocate. Vs. UT OF J&K & ORS …Respondent(s) Through: - Ms. Nadiya Assisting Counsel, vice Mr. Mohsin Qadiri, Sr. AAG. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE. JUDGMENT 1) Through the medium of present petition, the petitioner has assailed detention order bearing No.DIVCOM-“K”/202/2024 dated 06.12.2024, issued by Divisional Commissioner, Kashmir 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”), whereby preventive detention of Muzaffar Ahmad Bhat (the detenue) has been ordered 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 complied HCP No.393/2024 with in the instant case, inasmuch as whole of the material has not been provided to the petitioner. It has been further urged that the representation filed by the petitioner against his detention has not been considered, as no result of consideration thereof has been conveyed to the petitioner, thereby violating his rights guaranteed under the Constitution. 3) The respondents have resisted the petition by filing their reply affidavit, wherein they have contended that the detenue developed contacts with drug peddlers operating in his area and he started selling the drugs to the youth. It has been contended that the detenue was exposing the young and gullible minds including school going children into the heinous world of drugs and making them habitual addicts. It has been further contended that the detenue was an active member of a larger drug mafia who was relentlessly involved in drug trafficking not only in the local area of his residence but also in the surrounding areas. It has been contended that the detenue was involved in case FIR No.12/2024 for offences under section 8/20 NDPS Act registered with Police Station D. H. Pora Kulgam. 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 requirements and constitutional guarantees. In order to buttress their stand taken in the counter affidavit, the respondents have produced the detention record. HCP No.393/2024 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 following grounds: (i) That there has been non-application of mind on the part of the detaining authority while formulating the grounds of detention against the petitioner. (ii) That representation of the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights. (iii) That the detenue has not been provided the whole of the material, which prevented him from making an effective representation against his detention. 6) With regard to first ground, learned counsel for the petitioner has contended that in the grounds of detention, it has been mentioned that the petitioner was found to be involved in multiple FIRs but, while giving details of these FIRs, only one FIR bearing No.12/2024 has been mentioned in the grounds of detention. This, according to the learned counsel, reflects non-application of mind on the part of the detaining authority. 7) A perusal of the grounds of detention reveals that it has been alleged therein that the petitioner is a history sheeter which is evident from multiple FIRs registered against him. It is further indicated in the grounds of detention that the details of FIRs whereunder the petitioners was apprehended under the provisions of the NDPS Act have been shown as only one FIR i.e. FIR No.12/2024 of P/S D. H. Pora. The fact that the petitioner has been shown to be involved in only one FIR contradicts the assertion of the detaining authority that the petitioner is a history sheeter and is involved in multiple FIRs. This clearly exhibits non-application of HCP No.393/2024 mind on the part of the detaining authority. Even the detention record does not contain anything to even remotely suggest that the petitioner is involved in any FIR other than the one which is mentioned in the grounds of detention. This mechanical functioning of the detaining authority while formulating the grounds of detention against the petitioner makes the impugned order of detention unsustainable in law. 8) Next it has been contended that the representation of the petitioner against the impugned order of detention has not been considered by the respondents thereby violating his statutory and constitutional rights. 9) In the above context, the petitioner has placed on record a copy of the representation dated 17.12.2024 along with his writ petition (Annexure- V). He has also placed on record postal receipts dated 17.12.2024, which indicates that the representation has been sent to the Principal Secretary to Government, Home Department and the detaining authority. 10) The record produced by the respondents reveals that the representation of the petitioner has considered by the detaining authority and the same has been rejected on 09.01.2025. Thus, it is an admitted fact that the respondents had received the representation of the petitioner against the impugned order of detention but result thereof has not been conveyed to the petitioner. The respondents have not placed on record anything to show that the order of rejection of representation was conveyed to the petitioner. It is not coming forth from the record produced by the respondents as to whether the result of the representation has been conveyed to the petitioner. The Supreme Court in Sarabjeet Singh Mokha vs. District Magistrate, Jabalpur and others, (2021) 20 SCC 98, while HCP No.393/2024 dealing with the effect of failure to communicate the result of the representation has held that failure in timely communication of the rejection of the representation is a relevant factor for determining the delay that the detenue is protected under Article 22(5). It has been further held that failure of the government to communicate rejection of detenue’s representation in a time bound manner is sufficient to vitiate the detention order. 11) So far as the next ground of challenge is concerned, a perusal of the material on record reveals that the petitioner has received eight leaves comprising of copies of detention order, letter addressed to him and the copy of grounds of detention. The grounds of detention bears to FIR No.12/2024 registered with P/S D. H. Pora. It was incumbent upon the respondents to furnish not only copy of the FIR 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. 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. Even the copy of the dossier of detention has not been supplied to the petitioner. 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 whereof 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. HCP No.393/2024 12) 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 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). 13) In view of the above discussion, the petition is allowed and the impugned order of detention is quashed. The detenue is directed to be released from preventive custody forthwith provided he is not required not required in connection with any other case. 14) The detention record be returned to the learned counsel for the respondents. (Sanjay Dhar) Judge SRINAGAR 11.07.2025 "Bhat Altaf-Secy" Whether the order is speaking: Yes/No Mohammad Altaf Bhat I attest to the accuracy and authenticity of this document 11.07.2025 02:51