Jammu & Kashmir High Court
Mushtaq Ahmed Aged 37 Years vs Union Territory Of Jammu And Kashmir on 3 February, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 03.12.2024
Pronounced on 03.02.2025
HCP No. 114/2024
Mushtaq Ahmed Aged 37 years ....Petitioner(s)
S/o Nazir Ahmed
R/o Village Dhanori, Birma Pul, Tehsil and
District Udhampur
Through his wife
Neha Naz aged 30 years
W/o Mushtaq Ahmed
R/o Village Dhanori, Birma Pul, Tehsil and
District Udhampur
Through :- Mr. S.M. Wajahat, Advocate.
V/s
1. Union Territory of Jammu and Kashmir
Through Principal Secretary to Govt.
Home Department
Civil Secretariat, Jammu.
2. Divisional Commissioner, Jammu.
3. The District Magistrate, Udhampur.
4. The Superintendent District Jail, Udhampur.
....Respondent(s)
Through Mrs. Monika Kohli, Sr. AAG.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
1. Heard learned counsel for the parties. Perused the writ
pleadings and the record therewith.
2. The petitioner, acting through his wife, is maintaining the
present habeas corpus writ petition invoking article 226 of
the Constitution of India in order to regain his lost personal
liberty in the face of his ongoing preventive detention which
has been carried out under the provisions of the Prevention
of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 (in short 'PITNDPS Act, 1988').
3. The preventive detention of the petitioner is based upon an
Order PITNDPS No. 25 of 2024 dated 02.04.2024 passed by
the respondent No. 2-Divisional Commissioner, Jammu
which is being questioned in the present writ petition filed on
20.08.2024 after the petitioner had suffered almost four
months in running of detention custody.
4. The case for preventive detention of the petitioner under
PITNDPS Act, 1988 was, in fact, sponsored by the Senior
Superintendent of Police (SSP), Udhampur who, vide his
letter No. Conf./Dossier/170-73 dated 01.04.2024,
submitted a dossier to the respondent No. 2-Divisional
Commissioner, Jammu mentioning therein the alleged
activities of the petitioner reckoned to be the ones falling
within the mischief of section 3 of PITNDPS Act, 1988.
5. In the said dossier, the petitioner came to be referred as
notorious drug peddler of Udhampur already involved in four
criminal cases upon which the reference came to be made in
the dossier.
6. The petitioner was alleged to be booked in an FIR No.
159/2022 under sections 8/20/21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (in short, NDPS Act,
1985) registered by the Police Station, Rehmbal in which
case the petitioner was reported to be undergoing trial. The
petitioner's involvement in an FIR No. 143/2023 for alleged
commission of offences under sections 8/21/22 of NDPS Act,
1985 registered by the Police Station, Rehmbal was reported
to be under investigation. The petitioner was reported to be
an under-trial in connection with FIR No. 313/2023 under
sections 8/21/22 of NDPS Act, 1985 registered by the Police
Station, Udhampur. The petitioner was also reported to be
an under-trial in connection with FIR No. 276/2023 for
alleged commission of offences under sections
8/21/22/25/27-A/29 of NDPS Act, 1985 registered by the
Police Station, Bari Brahmana.
7. Insofar as the status of bail of the petitioner in relation to the
case under FIR No. 159/2022 is concerned, the petitioner
was reported to be enlarged on bail by the Additional
Sessions Judge, Udhampur in terms of an order dated
20.07.2022. The petitioner was reported to be on bail in
relation to case under FIR No. 143/2023 by virtue of an
order dated 26.05.2023 passed by the Additional Special
Mobile Magistrate, Udhampur. The petitioner was also
reported to be on bail in relation to the case under FIR No.
313/2023 by virtue of an order dated 14.08.2023 passed by
the court of Additional Sessions Judge, Udhampur. With
respect to the case under investigation in FIR No. 276/2023,
the petitioner was reported to be again on bail in terms of an
order dated 03.02.2024 passed by the Additional Sessions
Judge, Samba.
8. In the backdrop of the aforesaid facts and circumstances by
reference to the aforesaid four cases, the petitioner was
reckoned to be a fit case for being booked for preventive
detention in order to deter him from indulging in any illegal
activities relating to the Narcotic Drugs and Psychotropic
Substances Act, 1985.
9. Acting on the said dossier, the respondent No. 2-Divisional
Commissioner, Jammu came to draw purported subjective
satisfaction by formulating grounds of detention and came to
a confirmed view that in order to prevent the petitioner from
committing any offences under PITNDPS Act, 1988 and for
securing the health and welfare of public at large, the
petitioner's detention was warranted and accordingly, by
virtue of the impugned Order PITNDPS No. 25 of 2024 dated
02.04.2024, the petitioner came to be arrested and detained
in the District Jail, Udhampur.
10. The petitioner, acting through his wife, came to submit a
representation dated 22.05.2024 to the Financial
Commissioner (Additional Chief Secretary) Home
Department, UT of J&K and also to the respondent No. 2-
Divisional Commissioner, Jammu sent through registered
post on 22.05.2024 addressed to the said two Authorities.
11. The preventive detention of the petitioner has been
questioned on number of grounds one of which being that
the petitioner was on bail in all the aforesaid four cases in
which his alleged involvement came to be attributed in
relation to Narcotic Drugs and Psychotropic Substances Act,
1985 and that the Senior Superintendent of Police (SSP),
Udhampur deliberately sponsored a case for preventive
detention of the petitioner in order to over-reach the criminal
courts of law which had come forward in granting bail to the
petitioner in all the aforesaid four cases on the merits rather
than on concession basis and thus, the preventive detention
against the petitioner is nothing but a punitive detention
enforced upon the petitioner.
12. It is an established position of law that the preventive
detention jurisdiction cannot be pressed into service with a
punitive mindset and for that the test available is to examine
as to whether the sponsoring authority, before stepping
forward seeking preventive detention of a person booked
under different FIRs and bailed out by ordinary criminal
court/s of law had applied and approached to the respective
criminal court/s of law for seeking cancellation of bail in
favour of the said person on account of having abused the
bail liberty granted in his favour and thereby indulging in
repeat commission of offences of identical nature as is the
present case related to the petitioner being booked in all the
four cases under NDPS Act, 1985.
13. There is nothing in the dossier submitted by the Senior
Superintendent of Police (SSP), Udhampur to exhibit that the
Prosecution had applied for seeking rejection of the bail of
the petitioner on account of his subsequent involvement in
the alleged commission of offences under NDPS Act, 1985.
14. This is a very vital aspect attending the case which has been
left un-cared by and on the part of the Senior
Superintendent of Police (SSP), Udhampur thereby rendering
the preventive detention of the petitioner vitiated with an
illegality of being punitive.
15. In addition, the petitioner's continuing preventive detention
is also rendered bad on account of the fact that his pending
representation against his preventive detention has remained
un-responded to him for the reasons best known to the
detention order making and confirming authority.
16. The cumulative effect of the aforesaid facts and
circumstances rendered the preventive detention of the
petitioner as misconceived and non-compliant to the
mandate of the law and, therefore, warrants to be set aside.
17. Accordingly, this Court quashes the preventive detention
order PITNDPS 25 of 2024 dated 02.04.2024 passed by the
respondent No. 2-Divisional Commissioner, Jammu read
with confirmation/approval order and directs the release of
the petitioner to his personal liberty. Superintendent of the
concerned jail is directed to set the petitioner free in terms of
the present judgment.
18. Disposed of accordingly.
(RAHUL BHARTI)
JUDGE
JAMMU
03.02.2025
Naresh/Secy.
Whether the judgment is speaking: Yes / No
Whether the judgment is reportable: Yes / No
