Jammu & Kashmir High Court - Srinagar Bench
Jehangir Ahmad Dar vs Union Territory Of J&K &Ors on 14 October, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU &KASHMIR AND
LADAKH
AT SRINAGAR
Reserved on:24.09.2024
Pronounced on:. 14 .10.2024
HCP No.198/2024
JEHANGIR AHMAD DAR ...PETITIONER(S)
Through: - Mr. Usman Gani, Advocate.
Vs.
UNION TERRITORY OF J&K &ORS. ...RESPONDENT(S)
Through: - Mr. Satinder Singh Kala, AAG
CORAM:HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
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 to as "Act of 1988"),
has, vide order No.DIVCOM-"K"/279/2022 dated 19.10.2022,
ordered preventive detention of Shri Jahangir Ahmad Dar S/o Bashir
Ahmad Dar R/o Tulakhun Bijbehara, Anantnag, in order to prevent him
from committing any of the acts within the meaning of 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 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 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 been
made in the grounds of detention.
3) The respondents, despite availing a number of opportunities,
have not filed the counter affidavit. However, the learned counsel for
the respondents has produced the detention record.
4) I have heard learned counsel for the 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 as the detenue has
already been admitted to bail in FIR No.04/2021
registered with P/S Kothibagh, but this fact has not
been mentioned in the grounds of detention.
(II) That whole of the material forming basis of the
grounds of detention has not been furnished to
the detenue.
6) From a perusal of the material available on the file, the ground
regarding non-application of mind on the part of the detaining authority
appears to be forceful, inasmuch as the grounds of detention do not
bear any reference to the fact that the petitioner had already been
admitted to bail in FIR No. 04/2021for offences under Section 8/20
NDPS Act registered with P/S Kothibagh, Srinagar vide order dated
22.03.2021 read with order 03.04.2021 passed by learned 1st Additional
Sessions Judge, Srinagar. Copies of the orders passed by the said Court
in this regard have been placed on record by the petitioner. The non-
mentioning of this important fact in the grounds of detention exhibits
non-application of mind on the part of detaining authority. This shows
that the detaining authority has not meticulously examined the record
while passing the impugned order of detention which renders the same
unsustainable in law. I am supported in my aforesaid view by the
judgment of the Supreme Court rendered in the case of Anant
Sakharam Raut v. State of Maharashtra & Ors. AIR 1987 SC 137.
7) Next it is urged that whole of the material forming basis of the
grounds of detention has not been supplied to the petitioner which
deprived him from making an effective representation against his
8 The detention record produced by the respondents does
not contain any document that could suggest that the detenue has
received either the grounds of detention or the material relied upon for
formulating the grounds of detention. It is pertinent to mention here
that the respondents have not filed any counter affidavit, as a result
whereof, the assertion of the petitioner that he has not been furnished
the material, has remained un-rebutted.
9 As per the execution report, which forms part of the
detention record, the impugned order of detention was served upon the
petitioner on 04.05.2024, though, he was taken into custody on
30.04.2024. Accor a copy of the detention warrant (01 leaf), grounds of
detention (02 leaves), notice of detention (01 leaf), and other relevant
record (01 leaf), totaling 05 leaves. The grounds of detention bear
reference to FIR No. 04/2021 for offences under Sections 8/20 NDPS
Act of Police Station, Kothi Bagh, Srinagar. The dossier of detention
runs into (03) pages. Thus, it is not possible that copy of the aforesaid
FIR, including the statements of witnesses recorded under Section 161
Cr.P.C, copy of seizure memo, and copy of dossier, would run into one
(01) leaf only. As already indicated, the respondents are stated to have
handed over only (01) leaf comprising of other relevant records, which
obviously would include copies of FIR and, relevant material, and the
police dossier. This clearly goes on to show that the petitioner has not
been furnished whole of the material, particularly the copies of FIR
relevant documents, and the police dossier. Obviously, the petitioner
has been hampered by non-supply of the material in making a
representation against his detention. 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. Furnishing of whole of the
material is a necessary requirement for enabling the detenue to make an
effective representation against the order of detention. I am supported
in my aforesaid view by the judgments of the Supreme Court in Sophia
Gulam Mohd. Bham v. State of Maharashtra & ors (AIR 1999 SC
3051), Thahira Haris etc. etc. Vs. Government of Karnataka & Ors
(AIR 2009 SC 2184) and Ibrahim Ahmad Bhatti alias Mohd.
Akhtar Hussain alias Kandar Ahmad Wagher alias Iqbal alias
Gulam Vs. State of Gujarat and others", (1982) 3 SCC 440.
8) Viewed thus, the petition is allowed and the impugned order of
detention is quashed. The petitioner (detenu) is directed to be released
from the preventive custody forthwith, provided he is not required in
connection with any other case.
9) The detention record be returned to the learned counsel for the
respondents.
(Sanjay Dhar)
Judge
SRINAGAR
14.10.2024
"Bhat Altaf"
Whether the order is reportable: Yes
