Jammu & Kashmir High Court

Sr.No. 02 vs Union Territory Of J&K And Others on 22 May, 2025

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                    Sr.No. 02
                                                                           2025:JKLHC-JMU:1242



         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU

Case No. :- HCP No. 97/2024

Liakat Ali                                                     ..... Petitioner(s)
                        Through: Mr. A.R. Khan, Advocate

                   Vs

Union Territory of J&K and others                               ..... Respondent(s)

                        Through: Ms. Monika Kohli, Sr.AAG

Coram:       HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                                     ORDER

22.05.2025

1. In the instant petition filed under Article 226 of the Constitution of

India, the petitioner herein has challenged detention order No. PITNDPS 31 of

2024 dated 14.05.2024 (for short „impugned order‟) passed by the respondent 2

herein (for short „detaining authority‟) under and in terms of the provisions of

Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,

1988 (for short „Act of 1988‟).

2. The petitioner has challenged the impugned order on the following

grounds:-

"a. That the detention of the petitioner is illegal and arbitrary. The same appears to be based on the ideas. The Hon'ble Court may kindly appreciate that the respondents have exhibited complete non application of mind while detaining the petitioner as he was not provided with the copies of FIRs, seizure memos, copies of statements and other documents which were relied upon by the detaining authority while detaining the petitioner. The detention of the petitioner in such a mechanical manner is foreign to the spirit of Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988, constitutional mandate and the law laid down by the Hon‟ble Apex Court in its various authoritative

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pronouncements. The non-supply of the detention order and the requisite material on which the detention order has been passed has vitiated the petitioner's detention and further it has infringed the petitioner's right to make an effective representation to the competent authority against his illegal detention.

b. That the petitioner herein in both the cases has already been admitted on bail by the court of law. The petitioner is neither involved in any case whatsoever nor has any connection with commission of offence, but has been falsely implicated in the FIRs on the basis of which the petitioner has been put under detention by the respondents. Hence the order impugned is bad in the eyes of law and liable to be quashed.

c. That the petitioner was not informed about the grounds of detention and nothing was explained to her as to why he has been detained under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988. It is humbly submitted that the said detention order is merely an out come of non application of mind of detaining authority, as the petitioner has been detained from him house, thereby curtailing the liberty of the petitioner. Hence the order impugned is bad in the eyes of law and liable to be quashed.

d. That the petitioner has been detained in an illegal manner thereby violating his Right to Life enshrined under Article 21 of the Constitution. The petitioner has not been informed about the grounds of detention and no detention order was given to him at the time of his arrest. It was only, when the petitioner approached the authority of Jail he was given the said detention order which is in English Language and the petitioner who is not well conversant with the English language. Besides this the petitioner has also not been provided with the copies of any FIRs. This act on the part of the respondents vitiates the entire proceedings against the petitioner hence the order is liable to be quashed.

e. That it is settled law that the detaining authority is under an obligation to inform the detenue that he may approach Home Department, J&K Government, Jammu, if he would like to be heard in person by Advisory

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Board and make a representation to the Government against order of detention. It is further submitted that the detaining authority has to inform that he has a right to make a representation to the Government as well as detaining authority in terms of Subsection (4) of Section 8 of the Act has also power to revoke detention order. This power is clearly relatable to Section 21 of the General Clauses Act, Samvat, 1977, which has been saved by virtue of Act of 1988. Till the Government's approval to detention order is granted, since detaining authority had power to revoke detention order, a representation could have been made to detaining authority for revoking detention order. It was incumbent upon detaining authority to have informed detenue that he could also make a representation to detaining authority, if he so desired. Since detaining authority did not communicate to detenue that such a representation could be made to detaining authority, this per-se amounted to infraction of provisions of Section 13 of the Act of 1988 read with Article 22(5) of the Constitution of India.

f. That if the detenue is released on bail and was out of jail when the order of his detention was passed, then such order of bail must be placed before the Detaining Authority to enable it to arrive at proper subjective satisfaction. The satisfaction is to be derived by the Detaining Authority for placing an individual under preventive detention is subjective and the sufficiency of material considered by it cannot be made subject matter of judicial review. However, if the relevant material is not placed before the Detaining Authority, the subjective satisfaction derived by the Detaining Authority would be vitiated, in that, nobody can guess as to whether in the presence of availability of all requisite material the Detaining Authority may not have passed the detention order. With a view to enable the Detaining Authority to arrive at its subjective satisfaction, it is necessary for the authorities demanding the detention to produce all relevant material before the Detaining Authority. On this ground alone, the order impugned of detention is vitiated and cannot sustain in law and liable to be dismissed against the petitioner by setting the petitioner at liberty.

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g. That the impugned detention order suffers from non-application of mind as the period for which the petitioner has been detained under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 has not been mentioned by the detaining authority. On this ground also the detention order is required to be quashed.

h. That the detention is based upon irrelevant and non-existent ground and also the detention is based upon ulterior motives and the same is therefore required to be quashed.

i. That the petitioner has a right to life under Article 21 of the Constitution of India and this right includes life with dignity and there are only allegations against the petitioner and there was no scope for booking him under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act 1988 and as such the detention order be recalled by accepting the instant representation. Further it is a settled proposition of law that every accused is innocent unless proved guilty and merely by registration of FIR, it cannot be said that he has committed any offence, which is against the basic cannon of criminal jurisprudence. Hence the order impugned is liable to be quashed."

3. Counter affidavit has been filed by the respondents to the petition,

wherein the petition is being opposed on the premise that after carefully

examining the dossier and relevant record attached therewith, inasmuch as, the

repeated offences committed by the petitioner under the provisions of the

PITNDPS Act even after getting bail in various FIRs, he, the petitioner was

involved, the detention of the petitioner became imperative under the provisions

of the Act of 1988. It is further stated that at the time of execution of the

detention order, the petitioner came to be furnished complete set of dossier

along with detention order and grounds of detention, consisting of 46 leaves and

also came to be explained the same in Urdu language, besides informing him

that he can make a representation against his detention to the Government as

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well as the detaining authority. It is further stated that the detention order came

to be confirmed by the Home Department on 25.07.2024 after receiving the

opinion of the Advisory Board dated 23.07.2024. It is further stated that in view

of the law laid down by the Apex Court in case titled "Naresh Kumar Goyal Vs.

Union of India" reported in (2005) 8 SCC 276, as also in case titled

"Haradhan Saha v/s. State of W.B." reported in (1975) 3 SCC 198, wherein in

the said judgments it has been held that detention is not a curative or reformative

or punitive action, but preventive in nature and in order to prevent anti-social

and subversive elements from indulging in smuggling activities or from

engaging in illicit traffic in narcotic drugs and psychotropic substances and that

the preventive detention is devised to afford protection to the society and that

the power of preventive detention is a precautionary power exercised in

reasonable anticipation and may or may not relate to an offence and can be made

with or without prosecution and in anticipation or after discharge or even

acquittal and that the pendency of prosecution is no bar to an order of preventive

detention.

Heard counsel for the parties and perused the record.

4. Learned counsel for the petitioner, while making his submissions in

line with the case set up in the petition, would contend that even though the

impugned order of detention came to be passed on 14.05.2024 and the petitioner

was available for its execution, yet the respondents failed to execute the same

with due dispatch and delayed the execution of the order of detention, which

nullifies the object of the preventive detention ordered against the petitioner and

consequently, renders the impugned order legally invalid. Learned counsel for

the petitioner would further contend that a representation came to be submitted

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by the petitioner through his mother against the impugned order, sent through

registered post on 09.07.2024, yet the said representation was not considered by

the respondents, or else if considered, decision thereof not conveyed to the

petitioner.

5. On the contrary, the counsel for the respondents while controverting

the submissions of the counsel for the petitioner would insist that the impugned

order has been validly and legally passed after complying with the all statutory

requirements and adhering to constitutional guarantees.

6. Insofar as the aforesaid first plea of the counsel for the petitioner qua

the delay in execution of the order is concerned, it is not in dispute that the

impugned order has been passed on 14.05.2024 and as per the detention record

made available by the counsel for the respondents the said order indisputably

has been executed on 26.06.2024 by the executing officer, namely, SI Nitin

Khajuria of Police Station, Bishnah. Neither in the detention record nor in the

counter affidavit filed by the respondents it is provided, as to why the impugned

order came to be executed belatedly after more than a month. No explanation or

reason has been provided or stated in the detention record or else in the counter

affidavit filed to the petition. Insofar as delay in execution of the detention order

is concerned, the law is not more res integra and stands settled by the Apex

Court in case titled "Sushanta Kumar Banik Vs. State of Tripura" reported in

2022 SCC Online SC 1333, wherein in paras-13, 14 & 15, following has been

laid down:-

"13. There is indeed a plethora of authorities explaining the purpose and the avowed object of given to detection in express and explicit language. We think that all those decisions of this court on this aspect

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need not be recapitulated and recited. But it would suffice to refer to the decision of this court in Ashok Kumar v. Delhi administration and others reported in (1982) 2 SCC 403, where the following observation is made."

"Preventive detection is devised to afford protection to society. The object is not to punish a man for having done something, but to intercept before he does it and to prevent him from doing."

14. In view of above object of preventive detention, it becomes very imperative on the part of the detaining authority as well as executing authorities to remain vigilant and keep their eyes skinned, but not to turn a blind eye in passing the detention order at the earliest from the date of the proposal and executing the detention order, because any indifferent attitude on the part of the detaining authority or executing authority would defeat the very purpose of preventive detention and turn the detention order as a dead letter and frustrate the entire proceedings.

15. The adverse effect of delay in arresting a detenu has been examined by this court in a series of decisions and this court has laid down the rules in clear terms that an unreasonable and unexplained delay in securing a detainee and detaining him vitiates the detention order. In the decisions we shall refer hereafter, there was a delay in arresting the detenue after the date of passing of the order of detention. However, the same principles would apply even in the case of delay in passing the order of detention from the date of the proposal. The common underlying principle in both situations would be the "live & proximate link" between the grounds of detention & the avowed purpose of detention."

7. Insofar as the aforesaid next plea of the counsel for the petitioner qua

non consideration of representation claimed to have been submitted by the

petitioner through his mother against the impugned order is concerned, perusal

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of the detention record reveals that the said representation has been considered

and rejected by the respondents and a communication in this regard stands

addressed by the Deputy Secretary to Government, Home Department to the

Divisional Commissioner, Jammu bearing No. Home/PB-V/378/2024/7478845

dated 02.08.2024 with copy to the Superintendent District Jail, Udhampur for

information of the petitioner.

In view of the above, the representation, seemingly, has been

considered and rejected pursuant to the aforesaid communication, however, a

careful examination of the detention record as also the counter affidavit filed by

the respondents does not show or reveal that the petitioner stands conveyed the

rejection of the said representation. Admittedly, the representation of the

petitioner has been considered and rejected, however belatedly, even without

informing the petitioner. Insofar as the non communication of the result of the

representation and inasmuch as the delayed consideration of a representation

submitted by a detenue has been dealt with by the Apex Court in case titled

"Sarabjeet Singh Mokha v. DM, Jabalpur" reported in (2021) 20 SCC 98,

wherein at para 47 following has been held as under:-

"47. By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu "as soon as may be" and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate Government are intended to ensure that the representation of the detenu is considered by the appropriate Government with a sense of immediacy. The State Government failed to do so. The making of a

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reference to the Advisory Board could not have furnished any justification for the State Government not to deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Governments in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA. The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution."

(emphasis added)

08. Viewed thus, for the aforesaid reasons the petition succeeds, as a

consequence whereof, the impugned order No. PITNDPS 31 of 2024 dated

14.05.2024 is quashed with the direction to the respondents including the

concerned Jail Authority to release the petitioner from preventive detention

forthwith, unless he is required in any other case.

09. Detention record produced by the counsel for the respondents is

returned back in the open Court.

10. Disposed of.
                                (                             (Javed Iqbal Wani)
                                                                      Judge
Jammu
22.05.2025
Pawan Angotra
 