Jammu & Kashmir High Court
Ajaz Ahmad vs Ut Of J&K And Others on 5 May, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT JAMMU
HCP No. 143/2024
Reserved on: 24.04.2025
Pronounced on:05.05.2025
Ajaz Ahmad ..... Petitioner (s)
Through :- Mr. Waheed Chowdhary
Advocate
V/s
UT of J&K and others .....Respondent(s)
Through :- Ms Monika Kohli Sr. AAG
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 The petitioner, Ajaz Ahmed, son of Abdul Majid, resident
of Kothra Nadian, Tehsil Drahal, District Rajouri, (hereinafter referred
to as "detenu"), through his wife Nusrat Jaan, has challenged order No.
PIT NDPS 38 dated 09.10.2024 issued by respondent No.2 (the
detaining authority) whereby the detenu has been detained with a view to
prevent him from indulging in illicit trafficking of narcotic drugs and
psychotropic substances.
2 The impugned order of detention has been challenged by
the detenu on the ground that there were no compelling reasons for the
detaining authority to pass the impugned detention order, as the said
authority, without seeking cancellation of bail granted to the detenu in
the cases which have formed the basis for his detention, has
mechanically passed the impugned order of detention. It has been
contended that whole of the material forming the basis of the grounds of
detention has not been furnished to the detenu. It has also been
contended that the translated version of the grounds of detention has not
been furnished to the detenu, nor has he been informed of his right to
make a representation against the impugned order of detention. It has
further been contended that the detenu has been detained on the basis of
stale and past incidents that had taken place seven months prior to the
passing of the impugned order. It has been contended that there has been
undue delay in passing of the impugned order of detention, which makes
the subjective satisfaction of the detaining authority doubtful.
3 Respondent No.2, the detaining authority, in its counter
affidavit has submitted that the detenu was involved in as many as two
cases under NDPS Act and despite being booked under substantive law,
he obtained bail, whereafter, he again indulged in the illicit trafficking of
narcotic drugs. This, according to the detaining authority, was posing a
serious threat to the health and welfare of the people. It has been
submitted that ordinary law has failed to deter the detenu from indulging
in the illicit trafficking of narcotic drugs. It has been submitted that
whole of the material forming basis of the grounds of detention was
furnished to the detenu and the same was explained to him in
Urdu/Pahari languages, which he understands. It has been further
submitted that the detenu was informed about his right to make a
representation before the Government. It has been contended that all the
legal, statutory, and constitutional imperatives have been adhered to by
the respondents while detaining the detenu in terms of the impugned
order and that the same has been passed after carefully analyzing the
material on record. The respondents, in order to lend support to their
contentions, have produced the detention record.
4 I have heard learned counsel for the parties and perused
record of the case.
5 The first ground that has been raised by the learned counsel
for the detenu is that there were no compelling reasons for the detaining
authority to pass the impugned detention order as the detenu had already
been booked in substantive offences and granted bail. According to the
learned counsel for the detenu, the respondents could have sought
cancellation of bail instead of resorting to preventive detention.
6 In the above context, it is to be noted that the detenu was
booked in FIR No. 93/2020 for offences under Sections 8/20 of NDPS
Act. As per the allegations made in the said FIR, 350 grams of charas
was recovered from his possession. He was granted bail by the Court,
obviously because the intermediate quantity of charas was found in his
possession and the bar contained in Section 37 of the NDPS Act was not
attracted to his case. Thereafter, again on 21.03.2024, he indulged in
similar activities and he was found in possession of 6/7 grams of heroin.
FIR No. 15/2024 for offences under Sections 8/21/22 of NDPS Act came
to be registered against him. Again, he was enlarged on bail on
22.04.2024. It is, thus, clear that the detenu has been repeatedly
indulging in the activities of drug trafficking and on account of the fact
that he has been found to be in possession of non-commercial quantity of
drugs, he succeeded in obtaining bail from the Court. Nonetheless he
continued to indulge in activities of drug trafficking repeatedly.
Therefore, there was sufficient material before the detaining authority to
frame an opinion that ordinary criminal law has failed to deter the detenu
from indulging in drug trafficking. This Court, while exercising its writ
jurisdiction, cannot undertake judicial review of the subjective
satisfaction derived by the detaining authority regarding need to pass a
preventive detention order against the detenu, particularly when the said
satisfaction is based upon the material on record. The sufficiency or
otherwise of the material cannot be a subject matter of debate before this
Court in these proceedings. The contention of the detenu that there were
no compelling reasons for the detaining authority for passing the
impugned order of detention is, therefore, without any merit.
7 It has been next contended by the learned counsel for the
detenu that whole of the material forming the basis of grounds of
detention has not been furnished to the detenu. In this regard, he has
particularly pointed out to the discrepancy in the number of pages
supplied to the detenu as mentioned in the notice of detention, according
to which, (60) leaves have been forwarded by the Divisional
Commissioner, Jammu to the detenu and the execution report produced
by the respondents, according to which, the detenu is stated to have
received (02) leaves of detention order, (03) leaves of grounds of
detention, (01) leaf of notice of detention and (50) leaves of supporting
documents. It has been submitted that as per the execution report, the
detenu has received (56) leaves, but as per the notice of detention, (60)
leaves have been forwarded to him. On this basis, it is being claimed by
the learned counsel that whole of the material forming the basis of
grounds of detention has not been furnished to detenu and at least (04)
pages have not been furnished to him.
8 It is true that there is some discrepancy in the number of
leaves mentioned in the notice of detention and the number of leaves
mentioned in execution report, but the same can satisfactorily be
explained. In terms of notice of detention, the detaining authority has
forwarded, besides other documents, a copy of dossier of detention also
which runs into (04) pages, whereas, at the time of execution of the
detention warrant, it seems, that copy of the dossier of detention has not
been furnished to the detenu. Thus, while the detaining authority has
forwarded to the detenu not only the order of detention and the grounds
of detention, but it has forwarded to the detenue a copy of the dossier of
detention. However, at the time of execution of the warrant, it seems
that a copy of dossier of detention has not been furnished to the detenu.
It is for this reason that there is a discrepancy between number of pages
mentioned in the notice of detention dated 09.10.2024 and the execution
report. Nonetheless the record shows that the detenu has received whole
of the material forming the basis of the grounds of detention which
includes a copy of grounds of detention, dossier of detention, copies of
two FIRs and the copies of challan arising therefrom. The execution
report further reveals that the grounds of detention have been read over
in English and explained to the detenu in Urdu/Pahari language.
Therefore, the contention of the detenu that he has not been furnished
translated version of the documents is without any basis
9 It is further clear from a perusal of record that in terms of
the notice of detention, a copy whereof has been placed on record by the
detenu himself, he has been informed that he can make representation to
the Government (Home Department) as well as to the Detaining
authority. The contention of the detenu in this regard is also without any
10 Learned counsel for the detenu has laid much stress on the
ground that the detenu has been detained on the basis of past and stale
incidents having no proximity with the date of impugned order of
detention. In this regard, reliance has been placed upon the judgments of
this Court in the cases of Riyaz Ahmad Mir vs. UT of Jammu and
Kashmir (WP(Crl) No. 228/2021, decided on 25.05.2022), Mohd
Latief Dar vs UT of Jammu and Kashmir,(WP(Crl) No. 134/2021,
decided on 01.02.2022 and Krishan Lal alis Lundi vs UT of Jammu
and Kashmir (WP(Crl) No. 68/2022, decided on 06.04.2023. Reliance
has also been placed upon the judgment of the Supreme Court in the case
of Mallada K Sri Ram vs. The State of Telangana and others, (Cr.
Appeal No. 561 of 2022, decided on 04.04.2022).
11 If we have a look at the facts of the present case, FIR No.
15/2024 relates to an incident dated 21.03.2024, and the detenu was
granted bail in the said case on 22.04.2024. The dossier of detention was
forwarded by the Superintendent of Police, Rajouri, to the detaining
authority on 18.09.2024. Thus, it is only after about five months from
the date the detenu was enlarged on bail that the dossier of detention was
forwarded by the sponsoring agency to the detaining authority.
Therefore, it cannot be stated that there was any undue or unreasonable
delay between the alleged activities of the detenu and the issuance of the
impugned order of detention. The time gap between the last incident in
which the detenu was found to be involved and the passing of the
impugned order of detention is not too large to presume that the link
between the two is snapped. The judgments relied upon by learned
counsel for the detenu to support his contention are not applicable to the
facts of the case because of the peculiar facts in which those judgments
were rendered. The same, therefore, do not help the case of the
petitioner. The contention of the learned counsel for the detenu is,
therefore, without any merit.
12 For the foregoing reasons, I do not find any merit in this
petition. The same is, accordingly, dismissed. The detention record be
returned to the concerned forthwith.
(SANJAY DHAR)
JUDGE
Jammu
05.05.2025
Sanjeev
WHETHER ORDER IS REPORTABLE:YES/No
