Jammu & Kashmir High Court - Srinagar Bench
Adil Hussain Shah vs Union Territory Of Jammu And Kashmir ... on 14 October, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
1
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
HCP No. 380/2024
CM No. 5874/2025
Reserved on: 25.09.2025
Pronounced on: 14 .10.2025
Adil Hussain Shah, Aged 30 years
S/o Mohammad Yaqoob Shah
R/o Rawalpora, Shopian
through his father Mohammad Yaqoob Shah, Aged 76 Years
S/o Mohammad Sultan Shah
R/o Rawalpora, Shopian
District, Shopian.
.........Petitioner(s)
Through:
Mr. Ahmad Javid, Advocate and
Mr. Asif Nabi, Advocate
Versus
1. Union Territory of Jammu and Kashmir through Principal Secretary to (Home
Dept), J&K Government, Civil Secretariat Srinagar/Jammu.
2. Divisional Commissioner, Kashmir, Srinagar
3. Sr. Superintendent of Police, Shopian
4. Superintendent Central Jail, Poonch, Jammu.
......Respondent(s)
Through:
Mr. Nadiya Abdullah, Assisting Counsel
CORAM:
HON'BLE MS JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
JUDGMENT
1. Petitioner, Father of Adil Hussain Shah S/o Mohammad Yaqoob Shah
Shah R/o Rawalpora Shopian, District Shopian, hereinafter, for short as
detenue has challenged and sought quashment of order No. DIVCOM-
"K"/164/ 2024 dated 13.09.2024, for short "impugned order", issued by the
Divisional Commissioner, Kashmir- respondent No. 2 herein, whereby the
detenue has been placed under preventive detention.
2. The impugned order is assailed inter alia on the grounds that the
allegations/grounds of detention are vague; on mere assertions of the detaining
authority; no prudent man can make an effective representation against these
allegations; the involvement of detenue in case FIR No. 69/2024, under Section
8/20,29 NDPS Act mentioned in the grounds of detention have no nexus with
the detenue and has been fabricated by the Police in order to justify its illegal
action of detaining the detenue; the impugned order is without subjective
satisfaction of the detaining authority; the order of detention is silent about the
name and person of the office in Divisional Commissioner, who is presumed
to be have been recorded subjective satisfaction; the detaining authority was
supposed to furnish copy of the FIR No. 69/2024, copy of the seizure memo,
copy of the statements recorded under 161 or 164 Cr. PC, copy of the dossier
and other relevant material besides furnishing the report of the FSLs to the
detenue; the detenue persisted upon the executing authority to furnish the said
material so as to enable the detenue to make an effective representation against
his detention order, but the executing authority only furnished copy of the order
of detention and copy of the grounds of detention; the detenue had been granted
bail by the competent Court; the bail order was contested by the State/Union
Territory authorities and the said application was dismissed in terms of the
order dated 17.08.2024; the impugned detention order is passed on 13.09.2024
and the detenue was arrested on 28.10.2024, from his home by the Police
Station, Shopian and was subsequently shifted to District Jail, Poonch Jammu
and as such, there is delay of more than 45 days in execution of detention
warrant and the detaining authority has not tendered any reasonable explanation
for delaying execution of the detention warrant. The delayed execution has lost
the proximate link between the detention order and the object sought to be
achieved by passing the detention order as such, the detention order is illegal;
that the father of the detenue filed the representation against the order of the
detention before the Advisory Board, but the same was not considered by the
detaining authority; that in the grounds of detention the respondent No. 2, has
mentioned that the detenue is motivating the youth for consumption of drugs
so as to increase the earning, however, he has not mentioned the name of any
person, whom the detenue has sold the drugs.
3. Upon notice, the respondents appeared and filed the counter affidavit,
resisting the claim of the petitioner by stating therein that no legal, fundamental
or statutory right of the detenue has been violated; the detenue has transformed
into a notorious illicit drug peddler and became the dealer of narcotic drugs and
psychotropic substance in his area. The detenue developed contacts with drug
peddler's operative in his area and started selling/dealing in drugs among the
youth of the area which have adverse impact on the younger generation. The
detenue was continuously exposing the young and gullible minds including
school going children into the heinous world of drugs and making them habitual
addicts. The detenue was a part and active member of a larger drug mafia who
are relentlessly involved in drug trafficking not only in local area of his
residence but also involved in such illegal activities at the district level; that the
activities of the detenue in indulging in narcotic trade and with a view to
prevent him further committing any offence under the provisions of Prevention
of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988, the
detenue was ordered to be detained in accordance with the provisions of
Prevention of illicit Traffic in Narcotic Drugs and Psychotropic Substances
Act, 1988 under order dated 13.09.2024; that the order of detention was
executed by the concerned Police and the contents of grounds of detention were
read over and explained to the detenue in the language which he understands
fully. The detenue was also informed that he has a right to file a representation
to the Government against his detention order; that the Advisory Board
examined the instant case and it is only when they found sufficient ground for
the detention of the detenue, the Government in exercise of powers conferred
under clause (f) of Section 9 read with Section (11) of Prevention if Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, confirmed
the detention order of the detenue vide Government order dated 25.11.2024 and
detained him for a period of one year in District Jail, Poonch; that the activities
of the detenue were highlighted in the grounds of detention which are itself a
compelling reason to detain the detenue under prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988 and the order of
detention is perfectly issued in accordance with the provisions of the Prevention
of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988.
4. Heard learned counsel for the parties, perused the material on record,
including the detention record made available by the learned counsel for the
respondents.
5. The impugned order of detention has been assailed on numerous
grounds, but learned counsel for the detenue has laid stress on the ground that
there is un-explained delay in execution of detention order, which has rendered
the detention of the detenue unsustainable and (ii) that the representation
submitted by the detenue against his detention has not been considered.
Learned counsel for the detenue has relied on Judgments of the Supreme Court
in the case of A. Mohammad Farook v. Jt. Secy to GOI and Others, (2000) 2
SCC 360 and Sarabjeet Singh Mokha v. District Magistrate Jabalpur and
Others, (2021) 20 SCC 98 to substantiate his arguments. Learned counsel has
also relied upon a judgment of this Court in the case of Imtiyaz Ahmed v. UT
of J&K and others, HCP No. 15/2024 decided on 05.11.2024 to argue that
unreasonable and unexplained delay in executing the detention order would
vitiate the detention order unless such delay is sufficiently explained.
6. Learned Assisting counsel on the other hand submits that the detenue has
transformed into a notorious illicit drug peddler and became the dealer of
narcotic drugs and psychotropic substance in his area and has been involved in
various criminal offences by blatantly violating the rule of law indulging in
bovine smuggling and other criminal activities and has spread a reign of terror
amongst the peace-loving people of the area and his anti-social activities are
pre-judicial to the maintenance of public order and had he been let free, there
would have been every likelihood of his indulging again in criminal activities.
She further submits that the procedural safeguards prescribed under the
provisions of Public Safety Act and the rights guaranteed to the detenue under
the Constitution have strictly been followed in the instant case. The detenue has
been furnished all the material, as was required, and was also made aware of
his right to make representation to the Government, against his detention.
Learned counsel for the respondents has referred two judgments of this Court
in the cases of Shakeel Mohd. v. UT of J&K and another, HCP No.55/2024
decided on 21.11.2024 and Sher Mohd. v. UT of J&K and others., HCP
No.136/2024 decided on 05.50.2025.
7. The law is well settled that an unreasonable and unexplained delay in
executing the detention order will vitiate the detention order, unless such delay
is sufficiently explained by the detaining authority. The Supreme Court in
various judgments has laid down that if a detenue satisfies that there has been
an unexplained delay in execution of the detention order, then such an order
would be interpreted as breaking the live-proximity link in between the event
of detention and passing of the detention order.
8. The Supreme Court, while dealing with the issue of delay in execution
of the detention order, in the case of Mohammed Farook (supra), has in
paragraph No.9 observed thus:-
"9. There is a catena of judgments on this topic rendered by this Court
wherein this Court emphasized that the detaining authority must explain
satisfactorily the inordinate delay in executing the detention order
otherwise the subjective satisfaction gets vitiated. Since the law is well
settled in this behalf we do not propose to refer to other judgments which
were brought to our notice."
9. This Court in Imtiyaz Ahmed (supra) after considering the various
decisions of the Supreme Court on the issue of delayed execution of the
detention order in paragraph No.22 of the judgment held thus:-
"22. From the above decisions of the Supreme Court, it becomes crystal
clear that when there is no proximity or live link between the passing of
the detention order and date of arrest of the detenue, it would render the
detention order ineffective unless such delay is satisfactory explained."
10. The Supreme Court in the case of Nenavath Bujji vs The State Of
Telangana, (2024) 3 SCR 1181, after surveying case law on the subject and
considering its earlier decisions, concluded thus:
" i) The Detaining Authority should take into consideration only relevant
and vital material to arrive at the requisite subjective satisfaction,
(ii) It is an unwritten law, constitutional and administrative, that wherever
a decision-making function is entrusted to the subjective satisfaction of the
statutory functionary, there is an implicit duty to apply his mind to the
pertinent and proximate matters and eschew those which are irrelevant &
remote,
(iii) There can be no dispute about the settled proposition that the detention
order requires subjective satisfaction of the detaining authority which,
ordinarily, cannot be questioned by the court for insufficiency of material.
Nonetheless, if the detaining authority does not consider relevant
circumstances or considers wholly unnecessary, immaterial and irrelevant
circumstances, then such subjective satisfaction would be vitiated,
(iv) In quashing the order of detention, the Court does not sit in judgment
over the correctness of the subjective satisfaction. The anxiety of the Court
should be to ascertain as to whether the decision-making process for
reaching the subjective satisfaction is based on objective facts or
influenced by any caprice, malice or irrelevant considerations or non-
application of mind,
(v) While making a detention order, the authority should arrive at a proper
satisfaction which should be reflected clearly, and in categorical terms, in
the order of detention,
(vi) The satisfaction cannot be inferred by mere statement in the order that
"it was necessary to prevent the detenu from acting in a manner
prejudicial to the maintenance of public order". Rather the detaining
authority will have to justify the detention order from the material that
existed before him and the process of considering the said material should
be reflected in the order of detention while expressing its satisfaction,
(vii) Inability on the part of the state's police machinery to tackle the law
and order situation should not be an excuse to invoke the jurisdiction of
preventive detention,
(viii) Justification for such an order should exist in the ground(s)
furnished to the detenu to reinforce the order of detention. It cannot be
explained by reason(s) / grounds(s) not furnished to the detenu. The
decision of the authority must be the natural culmination of the application
of mind to the relevant and material facts available on the record, and
(ix) To arrive at a proper satisfaction warranting an order of preventive
detention, the detaining authority must, first examine the material adduced
against the prospective detenu to satisfy itself whether his conduct or
antecedent(s) reflect that he has been acting in a manner prejudicial to the
maintenance of public order and, second, if the aforesaid satisfaction is
arrived at, it must further consider whether it is likely that the said person
would act in a manner prejudicial to the public order in near future unless
he is prevented from doing so by passing an order of detention . For
passing a detention order based on subjective satisfaction, the answer of
the aforesaid aspects and points must be against the prospective detenu.
The absence of application of mind to the pertinent and proximate material
and vital matters would show lack of statutory satisfaction on the part of
the detaining authority."
11. Coming to the facts of the instant case, the record indicates that the detention
order, which was passed on 13.09.2024, came to be executed 28.10.2024 i.e. after
forty five days. No explanation muchless the sufficient reason has been offered by
the respondents to justify the delay in execution of the detention order. If the real
intent of the impugned order of detention was to prevent the detenue from acting any
manner prejudicial to the public peace and order the respondents should not have
waited for forty-five days to execute the detention order. It appears that no serious
effort has been made by the respondents to execute the detention order, which casts
doubt on the subjective satisfaction drawn by the detaining authority. Once there was
delay in execution of the warrant of detention and no explanation is coming forth
from the respondents for having delayed the execution of the detention order for
forty-five days, the order of detention would be construed as breaking the live
proximity link between the event of detention and order of detention, which casts
doubts on the genuineness of the subjective satisfaction of the detaining authority and
vitiates the detention order. In view of the law laid down by the Supreme Court in
Nenavath Bujji (supra), satisfaction cannot be inferred by mere statement in the order
that "it was necessary to prevent the detenue from committing any of the acts within
the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988".
12. The judgments referred to by the learned counsel for the respondents are of no
help to the respondents as there is no live-proximity link between the arrest of the
detenue and the order of detention, which vitiates the detention order. As such, the
detention of the detenue in terms of the impugned detention order becomes illegal.
13. Viewed thus, the petition is allowed and detention order No. DIVCOM-"K"/164/
2024 dated 13.09.2024, issued by the Divisional Commissioner, Kashmir- respondent
No. 2, herein, whereby one Adil Hussain Shah S/o Mohammad Yaqoob Shah R/o
Rawalpora Shopian, District Shopian, was detained, is quashed and the respondents
are directed to release the detenue forthwith, if not required in any other case.
14. Disposed of.
15. Record produced by learned counsel for the respondents is returned to him
against receipt.
(MOKSHA KHAJURIA KAZMI)
JUDGE
Srinagar
14.10.2025
"Mohammad Yasin Dar"
Whether the Judgment is reportable: Yes/No.
Whether the Judgment is speaking: Yes/No
