Jammu & Kashmir High Court
Nek Ram @ Satnam Ag 53 Years vs Ut Of J&K And Ors on 24 July, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No. 3
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 11/2025
CM No. 2666/2025
Nek Ram @ Satnam Ag 53 years .....Petitioner(s)
S/o Chaino Ram
R/o Village Narot Jaimal Singh,
Tehsil and District Pathankot,
Through: Mr. Jagpaul Singh, Advocate
Vs.
UT of J&K and Ors. ..... Respondent(s)
Through: Mrs. Monika Kohli, Sr. AAG with
Ms. Priyanka Bhat, Advocate.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
24.07.2025
1. The petitioner herein has invoked the extraordinary writ jurisdiction
of this Court enshrined in Article 226 of the Constitution of India seeking quashing
of order of detention No PITNDPS 52 of 2024, dated 21.12.2024 issued by
Divisional Commissioner, Jammu-respondent 2 herein (for short, the “detaining
authority”) under and in terms of provisions of Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substance Act, 1988 (hereinafter referred to as
the, “Act of 1988”).
2. The petitioner herein has urged the following grounds in the petition for
seeking quashing of the impugned order.
(a) That the bare perusal of the order impugned makes it amply clear
that the same is issued by the respondent 2, in an unreasonable
and arbitrary manner and without proper application of mind to
the peculiar facts and circumstances of the present case. On this
Ground alone, the order impugned requires to be quashed by this
Hon’ble Court.
(b) That the grounds of detention are a verbatim account of the
dossier prepared by the respondent No. 3 the respondent No. 2 has
miserably failed to record its subjective satisfaction before passing
2 HCP No. 11/2025the order impugned. In other words, respondent No. 2, is bound to
record its subjective satisfaction that petitioner is engaged in the
alleged act of illegal traffic in narcotic drugs and psychotropic
substance, and the same poses a serious threat to he health and
welfare of the people. The bare perusal of the grounds of detention
and order impugned makes it a ply clear that respondent no. 2 has
miserably failed to record subjective satisfaction that the
petitioner is engaged in the alleged Act of illegal traffic in
narcotic drugs and psychotropic substances, and the same poses a
serious threat to the health and welfare of the people. The order
impugned passed by the respondent No. 2 prima Facie appear to
be vacuous one. On this ground also the order of detention
requires to be quashed by this Hon’ble Court.
(c) That the grounds of detention, the order of detention and dossier
were not provided to the petitioner within the stipulated period as
prescribed under Section 3 of Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988, and
moreover the same was neither read over nor explained to the
petitioner in the language which the petitioner understands. It
needs to mention that petitioner is uneducated/illiterate and is not
in a position to read or understand English Language and the
grounds of detention were neither explained to him nor made him
understand. The respondent did not supply all the relevant
documents to the petitioner like copies of FIR and challans
including the statements of witnesses recorded during the course
of investigation, seizure memos etc. nevertheless respondents are
bound to furnish all the relevant documents to the petitioner
including the material collected during the course of investigation
like statement of witnesses, seiozure memos etc. within the
stipulated period enabling the petitioner to file an effective
representation against his detention under the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988,
before the concerned authorities at the earliest. It is pertinent to
mention that most of the copies supplied to the petitioner are not
even legible. Petitioner does not known Urdu language, and
therefore, respondents ought to provided translated copies of the
Urdu documents, to the petitioner, so that petitioner could made
an effective representation against his detention under this
draconian legislation, before the concerned authorities, Therefore,
petitioner could not make an effective representation before the
detaining authority as well as before the Government, at the
earliest. On this ground also the order impugned requires to be
quashed by this Hon’ble Court.
(d) that as mentioned above, the grounds of detention are based upon
two criminal cases registered against the petitioner and one
complaint/s 129 of BNSS, alleged to be preferred before the
Executive Magistrate, 1st Class, Kathua. The bare perusal of the
contents of the criminal cases registered against the petitioner, no
such inference can be drawn that petitioner is engaged in the
3 HCP No. 11/2025illicit traffic in narcotic drugs and psychotropic substances, and
the same poses a serious threat to the health and welfare of the
people. It is significant to mention here that the perusal of the
order of detention, grounds of detention and dossier, makes it
amply clear that except bald allegations, there is nothing on
record to support the contentions of the detaining as w3ell as
sponsoring authority that applicant is engaged in the illicit
trafficking of narcotic drugs. Needless, to mention that law of
preventive detention talks about material against the detenue and
not the mere allegations. A person cannot be detained under this
draconian legislation merely by leveling bald and baseless
allegations. There is not even a single instance of drug peddling
against the petitioner, however, respondents have leveled false
and frivolous allegations against him. Needless to mention here
that mere leveling of allegations does not tantamount of the
material against the petitioner for his detention under this
draconian legislation. Moreover, there is nothing on record,
evidencing that the copy of the complain t u/s 129 BNSS, which is
annexed with the material supplied to the petitioner, alleged to be
preferred before the Executive magistrate, 1st Class, Kathua, was
in fact preferred before the Executive Magistrate, 1st Class,
Kathua. The perusal of Section 129 BNSS, transpires that the said
complaint alleged to be preferred U/s 129 BNSS, is not even
maintainable, as the same falls beyond the scope and ambit of
Section 129 of BNSS. In the said complaint, it is alleged that for
controlling the political activities of the petitioner, the said
complaint u/s 129 BNSS, is preferred. Thus, leaving the petitioner
in a confused state of minds, kept on pondering as to why he is
detained under this draconian legislation. Therefore, the order
impugned has been issued by the respondent No. 2, without
recording its subjective satisfaction. On this ground also the order
impugned requires to be quashed by this Hon’ble Court.
(e) That in the order of detention, it is further alleged that the actives
of the petitioner are prejudicial to the safety/security of the public
at large. In the grounds of detention, it is alleged that the actives
of the petitioner are highly prejudicial to the maintenance of
public order and illicit traffic in narcotic drugs and psychotropic
substances. Thus, the Divisional Commissioner, Jammu, while
passing the order of detention of the applicant under Prevention of
Illicit Traffic in Narcotic drugs and psychotropic substances Act,
1988, has recorded its satisfaction that the activities of the
petitioner are prejudicial to the maintenance of public order,
although a person cannot be detained under Prevention of Illicit
Traffic in Narcotic Drugs and psychotropic Substances Act, 1988,
for the activities which are prejudicial to the maintenance of
public order, as the same is covered by J&K Public Safety Act,
1978. However, the Divisional Commissioner, Jammu in the
grounds of detention has further alleged that the activities of the
petitioner are prejudicial to the illicit traffic in Narcotic Drugs. It
4 HCP No. 11/2025prima facie transpires that the respondent No. 2 himself was
doubtful as to whether the activities of the petitioner are
detrimental and prejudicial to the maintained of public order or
prejudicial to the illicit traffic in Narcotic Drugs. Thus, leaving the
petitioner in a confused state of mind as to whether he his detained
under the aforementioned draconian legislation for the activities
which are prejudicial to the maintenance of public order or for
illicit traffic in narcotic drugs. Consequently, petitioner could not
make a effective representation against his detention before the
concerned authorities. It is pertinent to mention here that
petitioner cannot be detained under Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988, by
clubbing the grounds of detention under J&K Public Safety Act,
1978. In the grounds of detention, Divisional Commissioner,
Jammu, has referred to the dossier submitted by the Sr.
Superintendent of Police, Kathua, and has stated that he
recommended the detention of the petitioner under Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
19878, to maintain public order, peace and tranquility, as the
substantive law has failed to deter the petitioner fro indulging in
illicit traffic. Thus, Divisional Commissioner, Jammu has issued
the order of detention of the applicant under Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988,
primarily for the maintained of Public order. In other words,
Divisional Commissioner, Jammu has recorded his primary
subjective satisfaction only to the extent that activities of the
petitioner are detrimental and prejudicial to the maintained of
public order, although petitioner cannot be detained under
Prevention of Illicit Traffic in narcotic Drugs and psychotropic
substances Act, 1988, for the activities which are alleged to be
detrimental and prejudicial to the maintained of public order.
Thus, the order impugned has been issued by the respondent no. 2
in the casual and mechanical manner, and without application of
mind to the peculiar facts and circumstances of the present case.
On this ground also the order impugned requires to be quashed by
this Hon’ble Court.
(f) that the perusal of the order of detention, along with grounds
of detention, along with grounds of detention and other material
supplied to the petitioner, transpires that the respondent No. 2
miserably failed to follow the duly procedure as laid down under
the Prevention of illicit Traffic in narcotic Drugs and
Psychotropic substances Act, 1988. Moreover, respondent No. 2
lacks jurisdiction to pass the order impugned. On this ground also
the order impugned requires to be quashed by this Hon’ble Court.
(g) That no doubt vast powers are conferred upon the respondents to
detain a person under Prevention of Illicit Traffic in narcotic
Drugs and Psychotropic Substances Act, 1988, but the same is to
be exercised in just, fair and reasonable manner and not in a
whimsical, capricious and fanciful manner. It needs to mention
5 HCP No. 11/2025
that from the facts and circumstances of the present case it is very
much evident that respondents have miserably failed to comply
with the procedural safeguards though respondents are bound to
strictly comply with all the procedural safe guards before
detaining the petitioner under Prevention Of Illicit Traffic in
Narcotic Drugs and psychotropic Substances Act, 1988. On this
ground also the order impugned requires to be quashed by this
Hon’ble Court.
(h) That as discussed hither to, there are only two criminal cases
registered against the petitioner, and first one was registered more
than one and half year back and second one was registered more
than nine months back, and petitioner is on bail in both the said
criminal cases registered against him, since long. Thus, there is no
live link between the date of the commission of the alleged offence
and the issuance of the order of detention of the petitioner under
this draconian legislation. On this ground also the order
impugned requires to be quashed by this Hon’ble Court.
(i) That In the interest of justice and to meet the ends of justice the
order impugned requires to be quashed by this Hon’bel Court and
petitioner be set at liberty at the earliest. It needs to mention that
Since the petitioner is in the illegal captivity of the respondents
and the same has resulted in the infringement of the right to
personal liberty of the petitioner, therefore, while quashing the
order impugned, this Hon’ble Court requires to direct the
respondent to compensate the petitioner for the infringement of his
fundamental right of personal liberty by paying compensation to
the tune of Rs. 50,00000 ( Rupees Fifty Lakhs Only).
3. Counter affidavit has been filed to the petition by the detaining
authority, wherein the petition is being opposed on the premise that none of the
constitutional, legal or statutory right of the petitioner have been infringed or
violated by the answering respondents, entitling the petitioner to invoke
extraordinary writ jurisdiction of this Court. It is also stated that the petition is
grossly misconceived and without any legal foundation, as such, merits outright
dismissal, more so, in absence of any infringement of constitutional, legal or
statutory right of the petitioner by the answering respondents. It is further stated
that a dossier in respect of the petitioner dated 17.12.2024 came to be submitted by
the Senior Superintendent of Police, Kathua/respondent 3 herein to the detaining
authority and after examining the same and relevant record attached thereto
6 HCP No. 11/2025
deemed it imperative to detain the petitioner under the Act of 1988, as the
petitioner after getting bail in FIRs’ he was involved having committed the
offences under Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substance Act, 1988, posed a serious threat to the public order and health and
welfare of the People and since ordinarily law failed to deter him from indulging in
the said activates in Drugs, the preventive detention of the petitioner was ordered.
It is further stated that at the time of the execution of the detention order, the
petitioner came to be provided all relevant documents by the executing officer
including the detention order, grounds of detention with total (76 leaves) and also
came to be explained the same in English, Hindi and Dogri, the language he
understood and was also informed about his right to make a representation before
the Government and the detaining authority against his detention. It is being further
stated that after issuance of the order of detention, same came to be confirmed by
the Home Department on 13.01.2025 after seeking an opinion from the Advisory
Board furnished by it on 21.01.2025.
4. A rejoinder affidavit has also been filed by the petitioner herein through
motion/ CM No. 2666/2025 stating therein that a representation came to be filed
against the detention order before the respondents 1 and 2 on 08.01.2025 and fate
of the said representation was not made known to the petitioner, however on
04.02.2024, the petitioner came to be informed by the Jail authorities that the
representation submitted by him against his detention before respondent 1 stands
rejected vide communication dated 31.01.2025.
Heard learned counsel for the parties and perused the record.
7 HCP No. 11/2025
5. Notwithstanding aforesaid multiple grounds of challenge urged by the
petitioner herein against the impugned order, Mr. Jagpaul Singh, appearing counsel
for the petitioner would press following grounds during the course of hearing of
the instant petition against the impugned order.
Firstly, Mr. Singh, would contend that the respondent 1 seems to have
considered and decided the representation of the petitioner submitted against the
impugned order belatedly, after the furnishing the opinion by the Advisory Board,
and without application of independent mind by the and secondly, the said
representation submitted before the respondent 2 was never considered, thus, the
mandate of Article 22(5) of the constitution stands observed in breach.
6. On the contrary, Ms. Monika Kohli, learned Sr. Additional Advocate
General appearing counsel for the respondents while opposing the submissions of
Mr. Jagpaul Singh appearing counsel for the petitioner, would insist that the order
under challenge has been passed validly and legally against the petitioner and in
the process all legal, statutory and constitutional provisions and guarantees stand
fulfilled and complied with. Ms. Kohli, would further submit that the
representation of the petitioner was considered rightly and a decision whereof also
came to be conveyed to the petitioner. Ms. Kohli, would further submit that since
the representation of the petitioner stands considered by respondent 1 also being an
authority competent to consider the representation beside the respondent-2, the
said consideration, can said to be substantial compliance of the provision of
Article 22 (5) of the constitution and no prejudice, whatsoever, can be said to have
been caused to the petitioner on account of non consideration of his representation
by respondent 2.
8 HCP No. 11/2025
7. Before adverting to the aforesaid rival submissions of the appearing
counsels by the parties, it is significant to mention here that law is settled that in
case of preventive detention, the procedure prescribed by the law under which the
detention is made must be strictly and if the said procedure is not complied with,
the detention is rendered illegal. Article 22(5) of the Constitution being relevant
and significant to controversy involved in the instant petition provides a right to the
detenue to make a representation against the order of the detention and is a most
cherished valuable right to the detenue against the order of detention, and if there is
any infraction of that right, the detention is rendered bad and illegal.
It is consistent view of the Constitutional Courts that right of a person
detained to make a representation against the order of detention is a comprehensive
one and it comprehends that a person detained has the right to make a
representation not only to the officer, who made the order of detention, but as well
as to the State/Central Government.
The Apex Court in case titled as, “Kamlesh Kumar Ishwardas Patel
V.s Union of India, reported in, “1995 4 SCC 51” has also held that the right
provided under Article 22(5) of the Constitution has the same force and sanctity as
any other provision relating to fundamental right and the said fundamental right
available to the detenue must be enforced irrespective of the nature of activities the
detenue is involved.
The Apex Court in case tilted as, “A.C. Razia vs. Government of
Kerala reported in 2004 2 SCC 621″ has held that combined effect of the
constitutional and statutory provision from the point of view of the detenue’s right
to make representation is to provide more than one forum to re-examine and re-
9 HCP No. 11/2025
view the case of the detenue and to afford him various means for redressal of his
grievance and that though Article 22 does not state before whom the representation
is to be made and that as to whether a representation can be made before one or the
other authority including the detaining authority would depend upon the nature of
legislation, whereby and whereunder the order of detention has been passed.
“In Union of India and Anr. V/s Chaya Ghoshal & Anr reported in
2005 10 SCC 97” , the Apex Court has observed that a constitutional protection is
given to every detenue which mandates the grant of liberty to the detenue to make
a representation against his detention, as imparted in Article 22 Clause 5, which
also impetrates the authority to whom the representation is addressed to deal with
the same with utmost expedition and that the representation is to be considered in
its right perspective keeping in view fact that the detention of the detenue is based
on the subjective satisfaction of authority concerned and the infringement of the
said constitutional right conferred under Article 22(5) of the Constitution would
invalidate a detention order.
8. Here a reference to Section 3 of the Act of 1988 would also be appropriate,
which reads as under:-
3 Power to make orders detaining certain person. (1) The Central
Government or a state Government, or any office of the Central
Government, not below the rank of a joint Secretary to that
Government, specially empowered for the purposes of this section
by that Government, or any officer of a State Government, not
below the rank of a Secretary to that If satisfied, with respect to any
person (including a foreigner), that with a view to preventing him
from engaging in illicit traffic in narcotic drugs and psychotropic
substances, it is necessary so to do, make an order directing that
such person be detained.
2 When any order of detention is made by a State
Government or by an officer empowered by a State
Government, the State Government shall, within ten
days, forward to the Central Government a report in
respect of the order.
3 For the purposes of clause (5) of Art, 22 of the
Constitution, the communication to a person detained
10 HCP No. 11/2025in pursuance of a detention order of the grounds on
which the order has been made shall be made as soon
as may be after the detention, but ordinarily not later
than five days, and in exceptional circumstances and
for reasons to be recorded in writing, not later than
fifteen days, from the date of detention.
9. Keeping in mind the aforesaid position and provision of law and
reverting back to the case in hand in general and, in particular, the aforesaid first
plea of the learned counsel for the petitioner, examination of the detention record
produced by the learned counsel for the respondents becomes imperative more so,
as well, it is not being disputed by the respondents that the petitioner submitted a
representation against his detention, which representation is stated to have been
received in the office of the respondent 2 on 11.01.2025, however, not considered
owing to the reason that the detention record have had been sent to the Advisory
Board for its opinion on 10.01.2025 itself. The aforesaid position emerges from
Communication bearing No. Home/PBV/6599/2024/7606614 dated 15.01.2025.
Record would however, show that the Advisory Board upon receipt
of the detention case of the petitioner has framed and furnished an opinion on
21.01.2025, which opinion interestingly at para-4 reveals that the Advisory Board
in fact has accorded consideration to the representation of the petitioner received
from the Home Department vide No Home/PBV/659/2024 dated 15.01.2025 and
has opined that no substance is found in the said representation while rejecting the
same.
Record would further show that the copy of the representation after
receiving by the office of the detaining authority has been forwarded through
Deputy Legal Remembrance to respondent 1 vide Communication No.
601/RA/CC-7621636 dated 11.01.2025 for perusal and necessary action in the
11 HCP No. 11/2025
matter, thus, manifestly signifying that the respondent 2 indisputably did not
address to the said representation at all. A reference here to the judgment of Apex
Court passed in case titled as, “Kamlesh Kumar Ishwardas Patel Vs. Union of
India reported in 1995 4 SCC 51″ would be relevant, wherein at para-38,
following has been held:-
“38. Having regard to the provisions of Article 22(5) of the
Constitution and the provisions of the COFEPOSA Act and
the PIT NDPS Act the question posed is thus answered:
Where the detention order has been made under Section 3 of
the COFEPOSA Act and the PIT NDPS Act by an officer
specially empowered for that purpose either by the Central
Government or the State Government the person detained has
a right to make a representation of the said officer and the
said officer is obliged to consider the said representation and
the failure on his part to do so results in denial of the right
conferred on the person detained to make a representation
against the order of detention. This right of the detenu is in
addition to his right to make the representation to the State
Government and the Central Government where the detention
order has been made by an officer specially authorized by a
State Government and to the Central Government where the
detention order has been made by an officer specially
empowered by the Central Government, and to have the same
duly considered. This right to make a representation
necessarily implies that the person detained must be informed
of his right to make a representation to the authority that has
made the order of detention at the time when he is served
with the grounds of detention so as to enable him to make
such representation and the failure to do so results in denial
of the right of the person detained to make a representation.”
10. Since as is noticed in the preceding paras, the representation submitted by
the petitioner to both respondents 1 and 2 is not being denied to have been received
by the said respondents, yet neither respondent 1 nor respondent 2 have addressed
and considered the said representation and instead the Advisory Board has
considered and rejected the said representation without any power in law to
consider the said representation, as the law is no more rest-integra and stands
settled that the function of the Advisory Board is purely advisory to report to the
Government whether a detenue is to be detained or not, whereupon the receipt of
12 HCP No. 11/2025
such report the Government upon its own application of mind and on the merits of
each case has to either agree with the said opinion or to disagree with the same.
11. Thus, from the above, the only inescapable conclusion that can be drawn
is that on the one hand, respondents 1 and 2 have violated the cherished and
valuable right of the petitioner enshrined under Article 22(5) of the Constitution
which failing to consider the representation submitted by the petitioner against his
detention and have in essence shunned their statutory and constitutional obligation
to consider the said representation and on the other hand the Advisory Board, has
illegally arrogated upon itself a power that the law has never vested unto it, i.e., the
power to consider and decide a representation made by a detenue against the
detention order.
12. Viewed thus, for what has been observed, considered, and analyzed
hereinabove, the instant petition succeeds, as a consequence whereof impugned
Order No. No PITNDPS 52 of 2024, dated 21.12.2024, is quashed, with a direction
to the respondents to release the petitioner from the preventive detention, unless is
required in any other case.
13. Disposed of.
14. Detention record produced by the counsel for the respondents is returned
back in the open Court.
(Javed Iqbal Wani)
Judge
Jammu:
24.07.2025
Javid IqbalWhether the judgement is speaking? Yes/No
Whether the judgement is reportable? Yes/No