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2026 DAILYLAW 2180 (JK)

Sham Din @ Shama v. UT of J&K

2026-02-20

Sanjay Dhar

body2026
JUDGMENT : SANJAY DHAR, J. 01. The petitioner, through the medium of the present petition, has challenged order No. PITNDPS 32 of 2025 dated 09.06.2025 (hereinafter to be referred to as “impugned order of detention”) issued by respondent No. 2-Divisional Commissioner, Jammu whereby while exercising powers under Section 3(1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter to be referred to as “PITNDPS” ), the detaining authority has ordered preventive detention of the petitioner. 02. The petitioner has challenged the impugned order of detention on the grounds that the same has been passed without application of mind. It has been contended that the impugned order of detention has been passed with an objective, which is alien to the object contemplated by Section 3 of the PITNDPS Act. It has been further contended that there is no proximate and live link between the alleged incidents forming basis of the grounds of detention with the order of detention as a result of which the same becomes unsustainable in law. It has also been contended that the State had filed an application seeking cancellation of the bail granted to the petitioner in FIR No. 66/2024 of Police Station, Bari Brahmana but the court of learned Additional Sessions Judge, Samba dismissed the said application on 02.06.2025, which prompted the detaining authority to pass the impugned order of detention. 03. It has also been contended that the petitioner was not informed about his right to make a representation against the impugned order of detention before the detaining authority. It has further been contended that whole of the material, forming basis of the grounds of detention, has not been provided to the petitioner as a result of which he was unable to make an effective representation against the impugned order of detention. It has further been contended the grounds of detention have not been explained to the petitioner in Gojri language. According to the petitioner, he is an illiterate person and cannot understand any language other than Gojri language. 04. The petition has been contested by the respondents by filing counter affidavit of respondent No. 2-the detaining authority. It has further been contended the grounds of detention have not been explained to the petitioner in Gojri language. According to the petitioner, he is an illiterate person and cannot understand any language other than Gojri language. 04. The petition has been contested by the respondents by filing counter affidavit of respondent No. 2-the detaining authority. In the counter affidavit, it has been contended that the petitioner, after getting bail in the cases in which he was booked, again involved himself in illicit trafficking of narcotic drugs, which was posing threat to the public order as well as to the health and welfare of the people. Accordingly, the detaining authority, after examining the dossier submitted by SSP, Samba has drawn subjective satisfaction about the imperative need to pass the detention order against the petitioner. Consequently, the impugned order of detention was passed. 05. It has been submitted that while executing the warrant of detention, entire material along with grounds of detention etc (total 53 leaves) were furnished to the petitioner and the contents thereof were explained to him in Hindi and Urdu language. It has been contended that the petitioner was involved in illicit traffic of drugs, which led to registration of two FIRs viz FIR No. 139/2023 and FIR No. 66 of 2024 against the petitioner and after getting bail in these cases, he continued to indulge in illicit trafficking as the ordinary law failed to deter him. In order to lend support to the aforesaid contentions, the respondents have produced the detention record. 06. I have heard learned counsel for the parties and perused record of the case including the detention record. 07. Although learned counsel for the petitioner has raised numerous grounds for assailing the impugned order of detention, yet during the course of arguments, he has laid much emphasis on the following grounds: (i) That there has been non-application of mind on the part of the detaining authority while passing the impugned order of detention inasmuch as the said order has been passed for an objective, which is alien to the purpose mentioned in Section 3 of the PITNDPS Act. (ii) That the entire material on the basis of which grounds of detention have been formulated, has not been furnished to the petitioner, which has hampered him from making an effective representation against the impugned order of detention. 08. (ii) That the entire material on the basis of which grounds of detention have been formulated, has not been furnished to the petitioner, which has hampered him from making an effective representation against the impugned order of detention. 08. In the context of the first ground, if we have a look at the grounds of detention, the detaining authority, after narrating the factual aspects, forming basis of lodging of FIR Nos. 139/2023 and 66 of 2024 registered with Police Station, Bari Brahmana and the four Daily Diary Reports (DDRs), has proceeded to refer to the dossier of the SSP, Samba, who according to the detaining authority, had recommended detention of the petitioner under PITNDPS Act to maintain public order, peace and tranquility as substantive law had failed to deter the petitioner from indulging in illicit trafficking of drugs. In the concluding para of the grounds of the detention, the detaining authority has drawn the satisfaction that with a view to prevent the petitioner from committing any offence under PITNDPS Act and to secure health and welfare of the public at large, it is necessary to detain the petitioner in terms of Section 3(1) of the PITNDPS Act. 09. From a perusal of the aforesaid contents of the grounds of detention, it appears that the detaining authority and the sponsoring agency intended to place the petitioner under preventive detention inter alia with a view to maintain public order, peace and tranquility. One of the objectives for detaining the petitioner may have been to prevent him from indulging in illicit traffic of the drugs but another objective of the detaining authority, as is discernible from the reading of the grounds of detention, was to detain the petitioner with a view to maintain public order. 10. A detaining authority while formulating the grounds of detention and while drawing subjective satisfaction has to be certain about the nature of activities in which the detenue is alleged to be indulging. The detaining authority has to make up its mind whether such activities are threat to the public order or whether such activities relate to illicit trafficking of drugs. 11. The detaining authority has to make up its mind whether such activities are threat to the public order or whether such activities relate to illicit trafficking of drugs. 11. The mention of words “ maintenance of public order ” in the grounds of detention would suggest that the detaining authority is not certain whether the activities of the petitioner fall within the definition of illicit trafficking as contained in Section 3 of PITNDPS Act or whether the same fall within the purview of breach of public order. A person cannot be detained for the acts prejudicial to the maintenance of public order in exercise of powers under Section 3 of the PITNDPS Act. It is only if the acts of a detenue fall within the definition of Clause (c) of Section 2 of PITNDPS Act that he can be taken into preventive custody. The tentativeness on the part of the detaining authority in drawing the conclusion regarding the nature of activities of the petitioner vitiates the subjective satisfaction drawn by it. 12. Not only this, the detaining authority while drawing conclusion from the grounds of detention has recorded that the detention order is necessary with a view to prevent the petitioner from committing any offence under PITNDPS. It is to be noted that provisions of PITNDPS Act do not define any offence and the said legislation has been designed only to prevent individuals from engaging in illicit traffic in narcotic drugs and psychotropic substances through preventive detention. 13. The fact that detaining authority has recorded that the petitioner is being detained with a view to prevent him from committing any offence under section PITNDPS Act when there is no offence defined under the said Act, shows total non-application on the part of the detaining authority. The impugned detention order, therefore, becomes unsustainable in law. On this ground alone, the impugned order of detention is liable to be set aside. 14. So far as the other ground urged by the petitioner is concerned, a perusal of the detention record would reveal that along with the letter dated 09.06.2025 addressed by the detaining authority to the petitioner, certain documents have been enclosed with the said letter which includes order of detention (three leaves), grounds of detention (six leaves) and dossier (89) leaves. So far as the other ground urged by the petitioner is concerned, a perusal of the detention record would reveal that along with the letter dated 09.06.2025 addressed by the detaining authority to the petitioner, certain documents have been enclosed with the said letter which includes order of detention (three leaves), grounds of detention (six leaves) and dossier (89) leaves. When we have a look at the receipt executed by the petitioner as also the execution report, it appears that only (53) leaves have been furnished to the petitioner. In the execution report, it is clearly indicated that copy of dossier of detention has not been furnished to the petitioner at all. Thus, the contention of the petitioner that whole of the material, forming basis of grounds of detention, has not been furnished to the petitioner, appears to be well founded. 15. Once it is shown that whole of the material forming basis of grounds of detention has not been furnished to the petitioner, it was not possible for him to make an effective representation against the impugned order of detention. The violation of this vital safeguard by the respondents renders the impugned order of detention unsustainable in law. In this regard, reliance can be placed on the judgment of the Supreme Court in the case of Ibrahim Ahmad Bhatti alias Mohd. Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias Gulam Vs. State of Gujarat and Ors. (1982) 3 SCC 440. 16. For what has been discussed hereinbefore, the petition is allowed and the impugned order of detention is quashed. The respondents are directed to set the petitioner at liberty if not involved in any other case. 17. The record be returned to learned counsel for the respondents.