Jammu & Kashmir High Court – Srinagar Bench
Tariq Ahmad Parray vs Union Territory Of J&K And on 13 March, 2025
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 231/2024
Pronounced on:13.03.2025
Tariq Ahmad Parray .... Petitioner/Appellant(s)
Through:- Mrs. Asifa Padroo, Advocate
V/s
Union Territory of J&K and .....Respondent(s)
others
Through:- Mr. Mubashir Malik, DyAG
CORAM: HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The petitioner has challenged detention order No.DIVCOM
“K”/94/2024 dated 25.04.2024 passed by the Divisional Commissioner,
Kashmir (hereinafter to be referred to as „Detaining Authority‟) under
Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 to prevent him from committing any act
within the meaning of illicit trafficking. The order of detention has been
assailed by the petitioner (hereinafter to be referred to as „detenu‟) through
his sister-Afroza Akhter.
02. The detention of the detenu has been ordered on the grounds that
(i) the detenu was already arrested in FIR No. 187/2016 under Sections 8/22
NDPS Act of Police Station Magam, FIR No. 08/2020 under sections 8/22,
29 NDPS Act of Police Station Magam and FIR No. 129/2023 under Section
8/22, 29 NDPS Act of Police Station Magam; (ii) the detenu was already in
custody in the aforesaid FIRs when the impugned order of detention has
HCP No. 231/2024 Page 2 of 6
been passed, that too, without application of mind; (iii) the Detaining
Authority has not arrived at its subjective satisfaction to detain the detenu in
terms of the aforesaid Act; (iv) the allegations mentioned in the grounds of
detention have no nexus with the detenu and has been fabricated by the
Police in order to justify the illegal detention; (v) the allegations are vague,
non-existent and no prudent man can make a representation against the
order; (vi) That all the documents relied upon by the Detaining Authority
have not been provided to him, which has affected his right to make an
effective representation; (vii) The detenu was not informed the time within
which he had to make a representation to the Detaining Authority as well as
the Government; (viii) the grounds of detention were not explained to him in
his local language which he understands (ix) the detenu was acquitted of the
charges leveled against him in the FIRs, however, this fact has not been
reflected in the order of detention.
03. The respondents have filed their counter affidavit as well as
produced the detention record. The respondents submit that the detenu poses
a great threat to the health and welfare of young generation in particular and
to common man in general. The order of detention was executed on
03.05.2024 and the contents of grounds of detention were read over and
explained to the detenu in the language which he understood. They further
submit that Advisory Board examined the case of detenu and found
sufficient grounds for detention of the detenu.
04. Heard learned counsel for the parties at length and also perused
the record.
HCP No. 231/2024 Page 3 of 6
05. As per the dossier of the Sr. Superintendent of Police, the detenu
was involved in FIR No. 187/2016 under Sections 8/22 NDPS Act of Police
Station Magam, FIR No. 08/2020 under sections 8/22, 29 NDPS Act of
Police Station Magam and FIR No. 129/2023 under Section 8/22, 29 NDPS
Act of Police Station Magam. The Detaining Authority, after considering the
dossier of activities submitted by the Police, has arrived at its subjective
satisfaction to prevent the detenu from further committing any offences and
accordingly, issued the order of detention.
06. As per the grounds of detention, the detenu is the active member
of large drug mafia who was relentlessly involved in drug trafficking not
only in local area but at district level, as such, detenu had adopted the drug
trafficking as his regular source of earnings and had been motivating and
influencing the young minds into the drug consumption, thus, the Detaining
Authority had arrived at its subjective satisfaction with regard to the same.
The detenu has raised number of grounds in this petition but the detention is
unsustainable.
07. Learned counsel for the detenu has stressed on first ground
regarding non-application of mind that the detention of the detenu has been
based on FIR No. 08/2020, however, the detenu has already been acquitted
in the said FIR and this important fact has not been noticed by the Detaining
Authority while passing the order of detention. Perusal of the material on
record reveals that this ground regarding non-application of mind has force.
The Detaining Authority has based its subjective satisfaction on three FIRs
i.e., FIR No. 187/2016, FIR No. 8/2020 & FIR No. 129/2023. The Detenu
has been acquitted in FIR No. 08/2020. The judgment passed by the Court of
HCP No. 231/2024 Page 4 of 6
learned Additional Sessions Judge, (Fast Track Court), Budgam in case
titled UT of J&K vs. Nazir Ahmad Khan & Tariq Ahmad Parray, arising out
of FIR No. 08/2002, acquitting the detenu is placed on record. The grounds
of detention do not reflect that the detenu has been acquitted in FIR No.
08/2020 under Sections 8/22 and 29 of NDPS Act. The non-consideration
and mentioning of this important and vital fact in the grounds of detention
reflects total non-application of mind on the part of the Detaining Authority.
The Detaining Authority, thus, has not examined the record meticulously
while arriving at subjective satisfaction and passed the order of detention
which renders the same unsustainable.
08. It was next argued that the detenu was not provided all the
material that formed basis of the grounds of detention thereby violative his
right of making an effective representation. The receipt of grounds of
detention and other relevant material reveals that the material provided to the
detenu was detention order (01 leaf), notice of detention (01 leaf), grounds
of detention (03 leaves), dossier of detention (Nil), copies of FIR, statement
of witnesses and other related relevant documents (01 leaf). The detenu has
not been provided the dossier of detention and even all the other relevant
material has not been provided to him. The detention of the detenu was
based on dossier of the Sr. Superintendent of Police, District Budgam dated
26.08.2023. This has not been provided to the detenu. The detenu must
know what weighted with the Detaining Authority while passing the order of
detention. The Detaining Authority has also not provided all the other
relevant material as only one leaf was provided.
HCP No. 231/2024 Page 5 of 6
09. The detenu cannot make an effective representation/purposeful
representation until all the material in exercise of his constitutional and
statutory rights guaranteed to him. The failure to supply the material violates
the constitution right guaranteed to him. Article-22 of the Constitution
renders the detention illegal and unsustainable.
10. Failure by the Detaining Authority to supply material relied upon
at the time of passing the detention order renders the detention order
unsustainable in law as held in view of the law laid down in Sophia
Ghulam Mohd. Bham V. State of Maharashtra and others, reported as
AIR 1999 SC 3051, the Apex Court observed as under:-
“… The right to be communicated the grounds of detention flows from
Article 22(5) while the right to be supplied all the material on which the
grounds are based flows from the right given to the detenu to make a
representation against the order of detention. A representation can be made
and the order of detention can be assailed only when all the grounds on
which the order is based are communicated the detenu and the material on
which those grounds are based are also disclosed and copies thereof are
supplied to the person detained, in his own language…”
11. In Thahira Haris etc. etc. Vs. Government of Karnataka and
others, reported as AIR 2009 Supreme Court 2184, the Hon‟ble Supreme
Court has held as under:
“27. There were several grounds on which the detention of the detenu was
challenged in these appeals but it is not necessary to refer to all the
grounds since on the ground of not supplying the relied upon document,
continued detention of the detenu becomes illegal and detention order has
to be quashed on that ground alone.
28. Our Constitution provides adequate safeguards under clauses (5) and
(6) of Article 22 to the detenu who has been detained in pursuance of the
order made under any law providing for preventive detention. He has right
to be supplied copies of all documents, statements and other materials
relied upon in the grounds of detention without any delay. The
predominant object of communicating the grounds of detention is to enable
the detenu at the earliest opportunity to make effective and meaningful
representation against his detention.”
HCP No. 231/2024 Page 6 of 6
12. The detenu has made a representation before the detaining
authority but the same has not been considered till date. The record reveals
that the representation has not been considered till date, this infringes the
valuable right of the detenu. The Hon‟ble Supreme Court has time and again
held that the representation submitted by the petitioner must be considered
and disposed of at the earliest. In “Sarabjeet Singh Mokha vs. The District
Magistrate, Jabalpur and others“, reported as 2021 SCC Online SC
1019, it has held as under:
“22…………..Article 22(5) reflects a keen awareness of the framers of the
Constitution that preventive detention leads to the detention of a person
without trial and hence, it incorporates procedural safeguards which
mandate immediacy in terms of time. The significance of Article 22 is that
the representation which has been submitted by the petitioner must be
disposed of at an early date. The communication of the grounds of
detention, as soon as may be, and the affording of the earliest opportunity
to submit a representation against the order of detention will have no
constitutional significance unless the detaining authority deals with the
representation and communicates its decision with expedition.”.”
13. In view of the aforesaid discussion and without adverting to the
other grounds raised in this petition, this petition is allowed. Accordingly,
impugned detention order No. DIVCOM.”K”/94/2024 dated 25.04.2024
passed by the Divisional Commissioner, Kashmir, is quashed. The detenu-
Tariq Ahmad Parray, is directed to be released from the custody forthwith
if he is not otherwise required in any other case.
14. Detention record be handed over to learned counsel for the
respondents by the Registry forthwith.
(Sindhu Sharma)
Judge
Srinagar :
13.03.2025
Ram Murti
Whether approved for speaking : Yes/No
Whether approved for reporting : Yes/No