Jammu & Kashmir High Court
Asha Bibi vs Ut Of J&K Through Commissioner … on 30 June, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
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HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 05.06.2025.
Pronounced on : 30.06.2025.
HCP No. 15/2025
Asha Bibi, Age 32 years,
W/o Mohd Sadiq
R/o Khanpur Tehsil Marheen, District Kathua,
At present lodged at District Jail, Jammu
Through Husband
Mohd. Sadiq
S/o Yousaf
R/o Near Govt. School
Khanpur, District Kahua
Age 40 years.
.....Petitioner
Through: Mr. Gagan Oswal, Advocate
Vs
1. UT of J&K through Commissioner Secretary, Department, of Home,
Civil Secretariat, Srinagar/ Jammu.
2. Divisional Commissioner, Jammu.
3. Senior Superintendent of Police, Kathua.
4. Superintendent, District Jail Ambhphalla, Jammu.
..... Respondents
Through: Mrs. Monika Kohli, Sr. AAG
CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
01. Heard learned counsel for the petitioner as well as
for the respondents.
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02. Perused the writ pleadings and the documents
therewith. Also perused the detention record produced from
the end of the respondents.
03. The petitioner- Asha Bibi, who is a woman, came to
suffer preventive detention under the effects of the Prevention
of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Act, 1988 (“PIT-NDPS Act, 1988” in short) which
has resulted in her confinement in the District Jail, Jammu
and has come forward with the present writ petition filed
through her husband- Mohd Sadiq thereby seeking a writ of
habeas corpus to regain the lost personal liberty by
quashment of the preventive detention order passed in the
case.
04. The respondent No. 3 – Sr. Superintendent of Police
(SSP), Kathua by virtue of a letter No. Pros/PIT-
NDPS/53428-34/DPO dated 30.11.2024, served a dossier to
the respondent No. 2 – Divisional Commissioner, Jammu
thereby highlighting the alleged acts of omission or
commission on the part of the petitioner found to be serious
enough warranting her preventive detention in order to
prevent her from carrying on with mischief falling within the
scope of PIT-NDPS Act, 1988.
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05. In the dossier, it came to be mentioned by the
respondent No. 3 – Sr. Superintendent of Police (SSP),
Kathua that the petitioner is a notorious criminal/ drug
peddler/ habitual smuggler engaged in the sale and purchase
of narcotics substances thereby spreading the evil of drug
addiction in the Society. It also came to be alleged in the said
dossier that the petitioner has been found involved in sale/
purchase/possession of the narcotic drugs time and again
and infact has adopted the peddling of narcotic drugs as a
profession thereby posing a serious threat to the lives of
young generation of the Country and also to the economy of
the State.
06. In this regard, the antecedents of the petitioner in
terms of her implication in the criminal cases related to FIR
No. 294/2023 and FIR No. 104/2024, both registered by the
Police Station Rajbagh, for alleged commission of offences
under the Narcotic Drugs and Psychotropic Substances Act,
1985 (“NDPS Act, 1985” in short) came to be highlighted.
07. With respect to FIR No. 294/2023 involving alleged
possession of 8.45 grams of Heroine, the case was referred to
be still pending investigation but whereas with respect to FIR
No. 104/2024 involving alleged possession of 3.10 grams of
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Heroine, the case was said to have been investigated and
presented as a Final Police Report/Challan before the court
of Judicial Magistrate, Ist Class, Hiranagar.
08. In addition to the petitioner’s alleged involvement
by reference to the said two FIRs, the dossier came to
mention about DDR No. 24 dated 30.10.2024, DDR No. 25
dated 28.10.2024, DDR No. 16 dated 07.11.2024 & DDR No.
12 dated 08.11.2024, thereby purportedly meaning to say
that there are repeated adverse inputs related to the alleged
activities of the petitioner in narcotic deals.
09. The respondent No. 2 – Divisional Commissioner,
Jammu came to formulate the grounds of detention on the
basis of the dossier submitted to him by the respondent No. 3
– Sr. Superintendent of Police (SSP), Kathua for the purpose
of drawing a subjective satisfaction as to whether there is a
case made out for subjecting the petitioner to suffer
preventive detention under PIT-NDPS Act, 1988.
10. The respondent No. 2 – Divisional Commissioner,
Jammu came to make a repetition of the dossier by referring
to the alleged implication of the petitioner in FIR No.
294/2023 & FIR No. 104/2024 and adverse reports in terms
of DDR No. 24 dated 30.10.2024, DDR No. 25 dated
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28.10.2024, DDR No. 16 dated 07.11.2024 & DDR No. 12
dated 08.11.2024, all generated at the end of the Police
Station Rajbagh.
11. The respondent No. 2 – Divisional Commissioner,
Jammu came to an end opinion that it is imperative to detain
the petitioner under section 3(1) of the PIT-NDPS Act, 1988
and that led to the issuance of Order No. PITNDPS-50 of
2024 dated 09.12.2024 whereby the petitioner was ordered to
be detained and lodged in District Jail, Jammu.
12. By virtue of a communication No.601/RA/
Detention/248/cc-7614808 dated 09.12.2024 addressed to
the petitioner, the respondent No. 2 – Divisional
Commissioner, Jammu meant to convey to the petitioner
about passing of the detention order against her and her
detention to take place in terms of the said detention order.
The petitioner was also meant to be apprised upon her
detention as to her right to make a representation, be it to
the Govt. (Home Department, UT of J&K) or to the
respondent No. 2 – Divisional Commissioner, Jammu. The
petitioner was meant to be served with three(3) leaves of
detention order, three(3) leaves of grounds of detention and
sixty (60) leaves of dossier.
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13. The petitioner came to be detained by SI Som Raj of
the Police Station Rajbagh. The execution report submitted
by the Executing Officer-SI Som Raj refers to the fact that the
petitioner was taken into custody on 10.12.2024 from the
Police Station Rajbagh which further recites the fact that the
detention warrant was executed on 11.12.2024. The
petitioner was handed over to the Superintendent, District
Jail, Ambphalla on 11.12.2024. The petitioner is said to have
been explained the contents of the order and the grounds of
detention along with dossier besides handing over all the
relevant documents.
14. The fact of detention of the petitioner having taken
place under the PIT-NDPS Act, 1988 was duly conveyed to
the Ministry of Home Affairs as well as the Ministry of
Finance, Govt. of India by the Home Department, UT of J&K
in terms of communication No. Home/PB-V/631/2024
(7603326) dated 13.12.2024.
15. The preventive detention of the petitioner was
referred to an Advisory Board for its opinion which came to
be tendered on file No.Home/PB-V/631/2024 dated
26.12.2024. In its opinion, the Advisory Board came to refer
the fact that the petitioner’s detention had come to take place
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on 11.12.2024 and that there was sufficient cause for
ordering the preventive detention of the petitioner and all the
procedural compliances has been carried out.
16. The Advisory Board’s opinion dated 26.12.2024
paved a way for confirmation of the preventive detention of
the petitioner in terms of Govt. Order No. Home/PB-V/88 of
2025 dated 14.01.2025 passed by the Home Department, UT
of J&K, whereby the petitioner was ordered to be detained for
a period of one year with effect from 11.12.2024 to
10.12.2025 and to be lodged in District Jail, Jammu.
17. The petitioner, at her own end, acting through her
husband came to make a written representation dated
03.01.2025 to the respondent No. 2 – Divisional
Commissioner, Jammu thereby seeking revocation of the
preventive detention slapped against her.
18. In her said written representation, the petitioner
came to refer that she was implicated in false and frivolous
cases in FIR No. 294/2023 & FIR No. 104/2024. The
petitioner came to refer that in both the cases related to said
two FIRs she had been enlarged on bail and, therefore, the
preventive detention slapped upon her was unwarranted and
bad in law.
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19. The institution of the present writ petition came to
take place on 17.01.2025, whereby the petitioner came to
challenge her preventive detention on the grounds stated in
paras 6(a) to (h).
20. In her grounds of challenge as set out in the writ
petition, the petitioner has assailed the detention on the
grounds that she was not supplied with full compilation of
the record on the basis of which the impugned detention
order was passed against her which seriously prejudiced her
right of making an effective representation. The petitioner has
also emphasized on the point that despite being enlarged on
bail in both cases relatable to said two FIRs the passing of
preventive detention order against her was misconceived and
infact was punitive in intent and purpose.
21. It has come to be further challenged by the
petitioner that the impugned detention order is nothing but
the dossier as served by the respondent No. 3 – Sr.
Superintendent of Police (SSP), Kathua being borrowed
verbatim and given the disguise of detention order read with
its grounds of detention without any independent application
of mind on the part of the respondent No. 2 – Divisional
Commissioner, Jammu. The petitioner has also made a
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categoric challenge that her representation has gone un-
considered and unanswered which renders the continuing
detention seriously vitiated.
22. In the counter affidavit dated 05.03.2025 filed in
response to the writ petition, the respondent No. 2 –
Divisional Commissioner, Jammu has come to seek dismissal
of the writ petition. In preliminary objections, the respondent
No. 2 – Divisional Commissioner, Jammu has come to
question the very maintainability of the writ petition and also
highlighting the fact that the representation of the petitioner
was considered at his end and was found being devoid of
merits and disposed of but without disclosing in the counter
affidavit as to whether the petitioner was notified about the
rejection of her said representation or not.
23. In the counter affidavit, the fact has come to be
mentioned that the execution of the detention warrant had
taken place on 11.12.2024 and the date of expiry of detention
term is 10.12.2024 which surely is a typographical mistake
but nevertheless a serious lapse of attention on the part of
the respondent No. 2 – Divisional Commissioner, Jammu in
not being attentive to the reading of the affidavit before
putting his signature thereto.
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24. It has been stated in the counter affidavit that the
petitioner was delivered compilation of 65 leaves related to
the detention order and that she was fully explained both in
Hindi as well as in Gojri the contents and context of the order
of detention and the grounds of detention. In the counter
affidavit, reliance has also been placed upon the judgment of
the Hon’ble Supreme Court of India in the case of “Haradhan
Saha Vs State of W.B.,” (1975) 3 SCC, judgments of this
Court in LPA No. 55/2023 titled “Anil Sharma Vs UT of J&K
and others,” and LPA No. 12/2023 titled “Jahangir Ahmad
Dar Vs J&K & others.”
25. Upon going through the detention record produced
from the end of the respondents, this Court comes across
with a fact that the respondent No. 3 – Sr. Superintendent of
Police (SSP), Kathua while submitting his dossier to the
respondent No. 2 – Divisional Commissioner, Jammu omitted
to supply the bail orders related to the petitioner in
connection with said two FIRs i.e. FIR No. 294/2023 & FIR
No. 104/2024.
26. FIR No. 294/2023 registered by the Police Station
Rajbagh is dated 05.11.2023 in which along with the
petitioner another co-accused Ballo W/o Sudam Hussain
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came to be implicated and arrested on the same very date on
05.11.2023. FIR No. 104/2024 also registered by the Police
Station Rajbagh is dated 06.05.2024 in which connection the
arrest of the petitioner is said to have place on 06.05.2024.
27. In reference to FIR No. 104/2024 a Final Police
Report/Chargesheet No. 136/2024 dated 11.10.204 is said to
have been presented for subjecting the petitioner to suffer
trial before the competent criminal court of law. It is
forthcoming from the writ petition accompanying record that
it is the court of Additional Sessions Judge, Kathua which by
virtue of an order dated 09.05.2024 has come to grant
interim bail in favour of the petitioner by reference to her
arrest in FIR No. 104/2024.
28. In his dossier, the respondent No. 3 – Sr.
Superintendent of Police (SSP), Kathua by reference to FIR
No. 294/2023 has stated that the investigation is in progress
to ascertain the backward and forward links of the accused
ladies to nab the king-pins involved in procuring and selling
narcotics in the area, while simultaneously saying that the
offences under section 8/21/22 of the NDPS Act, 1985 stand
proved against the said two accused persons namely
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petitioner and Ballo bailed out by the order of the court
without mentioning vide which order and by which court.
29. As against this recital in his dossier that the
investigation of the FIR No. 294/2023 is still in progress, the
Final Police Report/Chargesheet No.136/2024 dated
11.10.2024 born out of FIR No. 104/2024 dated 06.05.2024
recites the fact that in connection with FIR No. 294/2023 the
petitioner is an undertrial meaning thereby the right hand of
the Police is not knowing what its left hand is doing in the
sense that the respondent No. 3 – Sr. Superintendent of
Police (SSP), Kathua is not fully versed with the fact as to the
actual status of FIR No. 294/2023 in connection with which
the petitioner is still under investigation or undertrial.
30. This Court is baffled by the fact that if the
respondent No. 3 – Sr. Superintendent of Police (SSP),
Kathua is not in a position to procure the bail orders
operating in favour of the petitioner by reference to said two
FIRs for the purpose of supplying them along with his dossier
so as to serve a full factual picture before the detention order
making authority i.e. the respondent No. 2- Divisional
Commissioner, Jammu then who else is supposed to be in a
position to procure the bail orders related to the petitioner for
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the purpose of knowing the basis on which a criminal court
came in exercise of its discretion to grant bail in fovour of the
petitioner relatable to offences under the NDPS Act, 1985
came to pass bail orders.
31. The very fact that the bail orders were withheld
from being produced so as to be shared with the respondent
No. 2 – Divisional Commissioner, Jammu is a pointer to the
fact that the sponsoring authority i.e. Sr. Superintendent of
Police (SSP), Kathua did not want to risk rejection of his
dossier by the respondent No. 2 – Divisional Commissioner,
Jammu that instead of seeking cancellation of bail so granted
in favour of the petitioner by reference to said two FIRs, the
preventive detention jurisdiction was sought to be exercised
to serve in disguise punitive detention.
32. This Court is surprised at its own end that upon
going through the dossier bearing a recital that the petitioner
is on bail in connection with said two FIRs, the respondent
No. 2 – Divisional Commissioner, Jammu did not register any
concern about lack of bail orders obtaining along with the
dossier.
33. The aforesaid lacuna is a serious lacuna in the
entire course of action at the end of the respondent No.2 –
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Divisional Commissioner, Jammu as well as the respondent
No.3 – Sr. Superintendent of Police (SSP), Kathua related to
the preventive detention of the petitioner which renders it
vitiated with illegality.
34. Another vitiating factor related to the preventive
detention of the petitioner is a suspense which seems to have
bothered no one as to whether the petitioner was detained on
10.12.2024 or 11.12.2024 which contradiction is very
apparent on the face of the record in terms of execution
report signed by none else than SI Som Raj, who is on record
saying that he has taken the custody of the petitioner from
Police Station Rajbagh on 10.12.2024 at about 18.30 hrs and
in the same very execution report is stating the fact that the
detention warrant has been executed on 11.12.2024. This
contradiction is a pointer to the fact that there is more than
what meets the eye related to the preventive detention of the
petitioner. Documents are meant to be an exhibit of the
record of the action done by the public servants and the
execution report is the very exhibit of the fact that on two
dates the petitioner’s detention is being related to bothering
no one including the Advisory Board to confirm the fact as to
on which date actually the petitioner was taken into custody.
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35. With respect to the petitioner’s representation and
its consideration, the respondent No. 2 – Divisional
Commissioner, Jammu is on record to say in his counter
affidavit that her representation was considered but found to
be devoid of merit and to this effect the detention record is
bearing the necessary documentation but the moot point is
whether the petitioner was apprised of the fact of fate of her
representation having been considered and rejected. To this
effect, there is no iota of proof obtaining on the file of the
detention record to confirm the fact that the petitioner came
to be served and delivered with a copy of the order in terms
whereof the petitioner’s representation was shown to have
been considered and rejected for whatsoever reason that may
be.
36. Mere placing of an order of rejection on the file of a
detention record is not be taken as a fact that the said
consideration order has been conveyed and communicated to
the petitioner and that is reason that in his counter affidavit,
the respondent No. 2 – Divisional commissioner, Jammu has
not risked an averment that the petitioner has been duly
communicated and conveyed about the fact of rejection of her
representation.
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37. Cumulative effect of all the aforesaid facts and
circumstances of the case render the preventive detention of
the petitioner vitiated with serious illegality and compromise
of procedural compliances and, therefore, warrants to be set
aside. Accordingly, the preventive detention Order No.
PITNDPS-50 of 2024 dated 09.12.2024 read with Govt. Order
No. Home/PB-V/88 of 2025 dated 14.01.2025 are set aside
and consequently directing release of the petitioner from the
preventive detention custody from the Jail wherever the
petitioner is lodged and accordingly, the Superintendent of
the concerned Jail is directed to release the petitioner
forthwith.
38. The original file of the detention record be handed
over to Mrs. Monika Kohli, learned Sr. AAG against proper
receipt, whereas the scanned record is to be retained along
with the file of the case by the Registry.
39. Disposed of.
(RAHUL BHARTI)
JUDGE
JAMMU
30.06.2025
Muneesh
Whether the judgment is speaking : Yes
Whether the judgment is reportable : Yes