Jammu & Kashmir High Court – Srinagar Bench
Shahid Manzoor Dar vs Union Territory Of J&K & Others Through on 14 January, 2025
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(Crl) No.41/2024
Reserved on:19.12.2024
Pronounced on: 14.01.2025
Shahid Manzoor Dar, Aged 22 years
S/o Manzoor Ahmad Dar
R/o Mohalla Mir Sahib District Baramulla,
through his Brother Faisal Manzoor Dar S/o
Manzoor Ahmad Dar; R/o Mohalla Mir
Sahib, Distrct Baramulla
....Petitioners
Through:
Mr. Mohammad Rafiq Bhat, Advocate
Vs.
1. Union Territory of J&K & Others through
Commissioner Secretary to Government,
Home Department J&K, Government, Civil
Secretariat, Srinagar.
2. Divisional Commissioner, Kashmir,
Srinagar.
Through:
Mr. Hakim Aman Ali, Dy.AG.
....Respondents
CORAM:
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE.
JUDGMENT
1. The detenue through his brother has filed the instant petition to challenge
the order No. DIVCOM-K/04/2024 dated 27.01.2024, for short
impugned order, in terms whereof the detenue Shahid Manzoor Dar S/o
Manzoor Ahmad Dar R/o Mohalla Mir Sahib District Baramulla has
been detained by respondent No. 2 under preventive detention in terms of
the provisions of „Prevention of Illicit Traffic in Narcotic Drugs and
WP(Crl) No.41/2024 Page 1 of 9
Psychotropic Substances Act, 1988‟ on variety of grounds taken in the
memo of the petition.
2. Upon notice,; the respondents have appeared and filed their counter
affidavit resisting the claim of the petitioner.
Brief Facts:
3. The detenue, a resident of Baramulla, is stated to have been arrested by
Police Station Baramulla in connection with FIR No. 168/2023 for the
commission of offences punishable in terms of Sections 8/21,29 NDPS
Act on 23.08.2023, wherein he was admitted to bail by the competent
court of jurisdiction. The detenue has subsequently been detained under
the provisions of „Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substance Act, 1988‟ on account of his involvement in the
above said FIR.
4. The detenue is stated to have been an active, notorious and illicit drug
peddler having worked as a member of the drug trafficking network to
lure the youth of the area towards the drug menace. The detenue was
accordingly booked in case FIR No. 168/2023 registered in Police
Station Baramulla for the commission of offences punishable in terms of
section 8/21,29 NDPS Act. However, the detenue continued his activities
without any remorse and was thus detained under the provisions of the
„Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988‟ by the impugned order.
5. The petitioner has challenged the impugned order inter-alia on the
grounds that the order is violative of the fundamental rights and statutory
procedural safeguards of the detenue; is vague, irrelevant, non-existent
and lacks specific character; the order suffers from non-application of
mind; it does not specify as to how the ordinary criminal law could not
have been effective against the detenue; it does not specify the
compelling reasons for invoking the preventive laws against the detenue;
the grounds of detention and other requisite material were proclaimed in
a hyper technical language i.e. English and the detenue failed to
understand the same and resultantly the detenue was not able to file a
representation against his detention; the impugned order has been issued
WP(Crl) No.41/2024 Page 2 of 9
in disregard of the fact that the detenue had been bailed out for his
alleged involvement in a substantive non-bailable offence.
6. Per contra the respondents in their counter affidavit have, while refuting
the allegations of the petitioner, stated that the detenue is involved in
case FIR No. 168/2023 of police station Baramulla for the commission of
offences punishable under section 8/21,29 NDPS Act. The detenue had
developed contacts with drug peddlers who were dealing in and selling
the drugs among the youth of the area which had an adverse effect on the
younger generation and the national economy. The detenue was detained
under preventive detention to prevent him from continuing with the trade
and to spoil the young generation of the Union Territory.
7. Heard learned counsel for the parties and perused the material on record.
8. Learned counsel for the petitioner has laid emphasis only on two grounds
viz; the non-application of mind on the part of the detaining authority
and the non-supply of material to the detenue thereby preventing him
from making a representation against his detention.
9. It appears from the perusal of the record that the detenue was involved in
case FIR No. 168/2023 of Police Station Baramulla wherein he has been
bailed out by the Court of 1st Additional Session Judge, Baramulla on
20.09.2023. It also does not come to fore as to whether the detenue after
having been bailed out has again been involved in the alleged drug
peddling activities which would provide respondents reason to resort to
the preventive measures in addition to the commencement of the
substantive criminal proceedings against the detenue. All this goes on to
show that the learned counsel for the petitioner is quite justified in
submitting that there is non-application of mind on the part of detaining
authority to detain the detenue for his involvement in case FIR
No. 168/2023 of Police Station Baramulla.
10. The contention of the learned counsel for the petitioner that the detenue
has not been provided the entire material thereby depriving him to move
a representation against his detention cannot be accepted as the
respondents have sufficiently shown by the records that the detenue was
WP(Crl) No.41/2024 Page 3 of 9
furnished the documents containing as many as 18 leaves. However, this
Court does not have any reason to dispute the contention of the petitioner
that the representation moved by the detenue, as is indicated by the
receipt dated 6th March, 2024 placed on record, against his detention was
not considered as the respondents have only stated that no representation
was moved by the detenue,but nothing has been said with respect to the
receipt of representation placed on record by the petitioner.
11.The Supreme Court in case titled “Mohinuddin Alias Moin Master Vs.
District Magistrate Beed and Others” reported as (1987) 4 SCC 58, has
held that failure on the part of the State Government to consider the
representation made by the detenue renders the detention of the detenue
invalid and continuation of detention, in such situation, is
constitutionally impermissible.
12. The Supreme Court in its latest pronouncement in case titled “Jaseela
Shaji vs. Union of India” reported as (2024) 9 SCC 53, while referring to
certain earlier decisions of the Court, has held that even if the
consideration to the representation of the detenue is delayed, not to speak
of non-consideration of the representation, the same is fatal for the
detention order. It would be profitable to reproduce paragraphs 56 and 59
of the said judgment herein:
“56. In the case of Rattan Singh vs. State of Punjab and
others (supra), this Court found that the representation of
the detenu made to the State Government was decided
expeditiously. However, insofar as the said representation
made to the Central Government is concerned, either it
was not forwarded or someone tripped somewhere. The
inevitable result was that the detenu was deprived of a
valuable right to defend and assert his fundamental right to
personal liberty. Chief Justice Y.V. Chandrachud, speaking
for the Bench, observed thus:
“4. There is no difficulty insofar as the representation to
the Government of Punjab is concerned. But the
unfortunate lapse on the part of the authorities is that they
overlooked totally the representation made by the detenu to
the Central Government. The representations to the State
Government and the Central Government were made by
the detenu simultaneously through the Jail Superintendent.
The Superintendent should either have forwarded the
representations separately to the Governments concerned
or else he should have forwarded them to the State
WP(Crl) No.41/2024 Page 4 of 9
Government with a request for the onward transmission of
the other representation to the Central Government.
Someone tripped somewhere and the representation
addressed to the Central Government was apparently
never forwarded to it, with the inevitable result that the
detenu has been unaccountably deprived of a valuable
right to defend and assert his fundamental right to
personal liberty. Maybe that the detenu is a smuggler
whose tribe (and how their numbers increase) deserves no
sympathy since its activities have paralysed the Indian
economy. But the laws of preventive detention afford only a
modicum of safeguards to persons detained under them
and if freedom and liberty are to have any meaning in our
democratic set-up, it is essential that at least those
safeguards are not denied to the detenus. Section 11(1) of
COFEPOSA confers upon the Central Government the
power to revoke an order of detention even if it is made by
the State Government or its officer. That power, in order to
be real and effective, must imply the right in a detenu to
make a representation to the Central Government against
the order of detention. The failure in this case on the part
either of the Jail Superintendent or the State Government
to forward the detenu’s representation to the Central
Government has deprived the detenu of the valuable right
to have his detention revoked by that Government. The
continued detention of the detenu must therefore be held
illegal and the detenu set free.
5. In Tara Chand v. State of Rajasthan [(1980) 2 SCC 321
: 1980 SCC (Cri) 441] it was held by this Court that even
an inordinate delay on the part of the Central Government
in consideration of the representation of a detenu would be
in violation of Article 22(5) of the Constitution, thereby
rendering the detention unconstitutional. In Shyam
Ambalal Siroya v. Union of India this Court held that when
a properly addressed representation is made by the detenu
to the Central Government for revocation of the order of
detention, a statutory duty is cast upon the Central
Government under Section 11, COFEPOSA to apply its
mind and either revoke the order of detention or dismiss
the petition and that a petition for revocation of an order of
detention should be disposed of with reasonable
expedition. Since the representation was left unattended for
four months, the continued detention of the detenu was held
illegal. In our case, the representation to the Central
Government was not forwarded to it at all.”
59. In the case of Aslam Ahmed Zahire Ahmed Shaik vs. Union of
India and others (supra), this Court was again considering a
similar factual scenario. The detenu had handed over the
representation to the Superintendent of Central Prison on 16th
June 1988, who callously ignored it and left the same unattended
for a period of seven days and forwarded the same to the
Government on 22nd June 1988. This Court surveyed the earlier
decisions and observed thus:
WP(Crl) No.41/2024 Page 5 of 9
“5. This Court in Sk. Abdul Karim v. State of W.B. [(1969)
1 SCC 433] held: (SCC p. 439, para
8) “The right of representation under Article
22(5) is a valuable constitutional right and is not a
mere formality.”
6. This view was reiterated in Rashid Sk. v. State of
W.B. [(1973) 3 SCC 476 : 1973 SCC (Cri) 376] while
dealing with the constitutional requirement of expeditious
consideration of the petitioner’s representation by the
Government as spelt out from Article 22(5) of the
Constitution observing thus: (SCC p. 478, para 4)
„4. The ultimate objective of this provision can only
be the most speedy consideration of his
representation by the authorities concerned, for,
without its expeditious consideration with a sense of
urgency the basic purpose of affording earliest
opportunity of making the representation is likely to
be defeated. This right to represent and to have the
representation considered at the earliest flows from
the constitutional guarantee of the right to personal
liberty — the right which is highly cherished in our
Republic and its protection against arbitrary and
unlawful invasion.”
7. It is neither possible nor advisable to lay down any rigid
period of time uniformly applicable to all cases within
which period the representation of detenu has to be
disposed of with reasonable expedition but it must
necessarily depend on the facts and circumstances of each
case. The expression “reasonable expedition” is explained
in Sabir Ahmed v. Union of India [(1980) 3 SCC 295 :
„12. What is „reasonable expedition‟ is a question
depending on the circumstances of the particular
case. No hard and fast rule as to the measure of
reasonable time can be laid down. But it certainly
does not cover the delay due to negligence, callous
inaction, avoidable red- tapism and unduly
protracted procrastination.”
8. See also Vijay Kumar v. State of J&K [(1982) 2 SCC 43
: 1982 SCC (Cri) 348] and Raisuddin v. State of U.P.
[(1983) 4 SCC 537 : 1984 SCC (Cri) 16] .
9. Thus when it is emphasised and re-emphasised by a
series of decisions of this Court that a representation
should be considered with reasonable expedition, it is
imperative on the part of every authority, whether in
merely transmitting or dealing with it, to discharge that
obligation with all reasonable promptness and diligence
without giving room for any complaint of remissness,
indifference or avoidable delay because the delay, caused
by slackness on the part of any authority, will ultimately
result in the delay of the disposal of the representation
which in turn may invalidate the order of detention as
WP(Crl) No.41/2024 Page 6 of 9
having infringed the mandate of Article 22(5) of the
Constitution.
10. A contention similar to one pressed before us was
examined by this Court in Vijay Kumar case wherein the
facts were that the representation of the detenu therein
dated 29-7-1981 was forwarded to Government by the
Superintendent of Jail on the same day by post followed by
a wireless message, but according to the Government, the
representation was not received by them. Thereafter, a
duplicate copy was sent by the Jail Superintendent on
being requested and the same was received by the
Government on 12-8-1981. Considering the time lag of 14
days in the given circumstances of that case, this Court
though overlooked the same and allowed the writ petition
on the subsequent time lag, made the following
observation: (SCC pp. 49-50, para 12)
„12 The jail authority is merely a communicating
channel because the representation has to reach the
Government which enjoys the power of revoking the
detention order. The intermediary authorities who
are communicating authorities have also to move
with an amount of promptitude so that the statutory
guarantee of affording earliest opportunity of
making the representation and the same reaching
the Government is translated into action. The
corresponding obligation of the State to consider
the representation cannot be whittled down by
merely saying that much time was lost in the transit.
If the Government enacts a law like the present Act
empowering certain authorities to make the
detention order and also simultaneously makes a
statutory provision of affording the earliest
opportunity to the detenu to make his representation
against his detention, to the Government and not the
detaining authority, of necessity the State
Government must gear up its own machinery to see
that in these cases the representation reaches the
Government as quickly as possible and it is
considered by the authorities with equal
promptitude. Any slackness in this behalf not
properly explained would be denial of the protection
conferred by the statute and would result in
invalidation of the order.‟
11. Reverting to the instant case, we hold that the
above observation in Vijay Kumar case will
squarely be applicable to the facts herein.
Indisputably the Superintendent of Central Prison of
Bombay to whom the representation was handed
over by the detenu on 16-6-1988 for mere onward
transmission to the Central Government has
callously ignored and kept it in cold storage
unattended for a period of seven days, and as a
result of that, the representation reached the
Government eleven days after it was handed over to
WP(Crl) No.41/2024 Page 7 of 9
the Jail Superintendent. Why the representation was
retained by the Jail Superintendent has not at all
been explained in spite of the fact that this Court
has permitted the respondent to explain the delay in
this appeal, if not before the High Court.
12. In our view, the supine indifference, slackness
and callous attitude on the part of the Jail
Superintendent who had unreasonably delayed in
transmitting the representation as an intermediary,
had ultimately caused undue delay in the disposal of
the appellant’s representation by the Government
which received the representation eleven days after
it was handed over to the Jail Superintendent by the
detenu. This avoidable and unexplained delay has
resulted in rendering the continued detention of the
appellant illegal and constitutionally
impermissible.”
13. This Court has also consistently been holding that the consideration of
representation is a valuable guaranteed right of the detenue enshrined in
the constitution and its violation is fatal for the detention order.
Reference in this connection is made to a case titled “Aijaz Ahmad Sofi v.
UT of J&K and Another” bearing WP(Crl) No. 479/2022 decided on
26.08.2022.
14.In view of the ratio laid down in the judgments supra, the Supreme Court
as also this Court have laid much emphasis on the fundamental right of
the detenue as envisaged in Section 22 (5) of the Constitution. The
Supreme Court has come down heavily on the respondents for taking
considerable amount of time in deciding the representation of the detenue
holding that such inaction prejudices the detenue and violates his
guaranteed right. The instant case is on a higher pedestal of violation as
the respondents have not decided the representation of the detenue at all,
not to speak of a delayed dispatch. In that view of the matter, the gravity
of the inaction in the instant case is much higher certainly amounting to
prejudicing the rights of the detenue with impunity.
15.For all what has been said hereinbefore, the Court is of the considered
view that the safeguards provided by the statute have not been complied
with in the instant case and the detenue resultantly has been deprived of
his right to seek consideration of his representation.
WP(Crl) No.41/2024 Page 8 of 9
16.The impugned order bearing order No. DIVCOM-K/04/2024 dated
27.01.2024, in terms whereof the detenue Shahid Manzoor Dar S/o
Manzoor Ahmad Dar R/o Mohalla Mir Sahib District Baramulla has
been detained is quashed and the detenu is directed to be released from
the preventive custody forthwith, if not required in any other case.
17.Disposed of.
18.The detention record be returned to Mr. H. Aman Ali, Dy.AG against
receipt.
(MOKSHA KHAJURIA KAZMI)
JUDGE
SRINAGAR:
14.01.2025
“Shaista-PS”
Whether the judgment is reportable: Yes/No.
Whether the judgment is speaking: YesSanjeev Kumar
2025.01.14 16:02
WP(Crl) No.41/2024
I attest to the accuracy and Page 9 of 9
integrity of this document