Jammu & Kashmir High Court – Srinagar Bench
Mohd. Yousuf Ganie vs Union Territory Of Jammu And Kashmir … on 6 March, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
04
Regular
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 201/2024
Mohd. Yousuf Ganie, Aged 42 years
S/o Gh. Qadir Ganie,
R/o Hassan Pora Tawila Bijbehara,
District Anantnag
Through his brother,
Mohammad Imtiyaz Ganie, Aged 37 years ..... Petitioner (s)
Through: Mr. Syed Faheem, Adv.
vice Mr. Mukhtar Ahmad Makroo, Adv.
V/s
1. Union Territory of Jammu and Kashmir through
Principal Secretary to Govt., Home Department,
Civil Secretariat, Srinagar/Jammu
2. Divisional Commissioner, Kashmir ..... Respondent(s)
Through: Mr. Satinder Singh Kala, AAG
Coram:
Hon'ble Mr. Justice Rahul Bharti, Judge.
JUDGMENT
06.03.2025
1. Through the medium of this petition under article 226 of
the Constitution of India, the petitioner Mohd. Yousuf
Ganie, acting through his brother Mohammad Imtiyaz
Ganie, is seeking writ of habeas corpus for earning
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HCP No. 201/2024
restoration of his personal liberty which came to be
curtailed on account of preventive detention jurisdiction
exercised by the Divisional Commissioner, Kashmir under
the Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (PITNDPS Act in
short).
2. Senior Superintendent of Police (SSP), Anantnag, by virtue
of letter No. CS/71/2023/12241-46 dated 08.07.2023
supplemented by letter No. Pros/D-10/2024/3649 dated
22.03.2024, submitted a dossier against the petitioner for
seeking his preventive detention under PITNDPS Act, 1988
alleging that the petitioner’s activities were falling within
the scope of mischief under PITNDPS Act, 1988
warranting his preventive detention. The dossier was
submitted to the respondent No. 2-Divisional
Commissioner, Kashmir.
3. Acting upon the said dossier, the respondent No. 2-
Divisional Commissioner, Kashmir came to draw
purported subjective satisfaction that the petitioner’s
personal liberty warranted to be curtailed by his being a
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HCP No. 201/2024
part and active member of large drug mafia operating in the
local area as well as District level, and therefore, passed an
Order No. DIVCOM”K”/36/2024 dated 16.04.2024
ordering preventive detention of the petitioner and his
detainment and lodgment in the Central Jail, Kot Bhalwal,
Jammu.
4. The detention order came to be executed on 07.05.2024
when the petitioner came to be taken into custody by ASI
Mirak Shah No. 60/Sec., EXK-911649 of the Police
Station, Bijbehara who handed over the person of the
petitioner to the Superintendent, Central Jail, Kot Bhalwal,
Jammu on 07.05.2024 itself.
5. After having purportedly carried out the formality of
handing over the detention order and the documents
therewith to the petitioner and also explaining the grounds
of detention and the order of detention to the petitioner in
the language understood by him and against that taking
signature of the petitioner to evidence that the petitioner’s
procedural formality was complied by the Detention
Warranting Executing Officer ASI Meeerk Shah, the
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HCP No. 201/2024
petitioner’s preventive detention commenced from
07.05.2024.
6. Aggrieved of his preventive detention, the petitioner,
before coming forward with the institution of present writ
petition, had acted promptly in addressing a written
representation dated 20.05.2024 to the Principal Secretary
to Government Home Department, Civil Secretariat, J&K,
Srinagar against proper receipt No. 4449791 dated
21.05.2024 and also to respondent No. 2-Divisional
Commissioner, Kashmir against proper receipt No.
4439722 dated 20.05.2024
7. The present writ petition came to be filed by the petitioner
on 29th May 2024 challenging the preventive detention inter
alia on the ground that the exercise undertaken at the end of
the Senior Superintendent of Police (SSP), Anantnag and
respondent No. 2-Divisional Commissioner, Kashmir was
misconceived and unwarranted making out no case worth
considering least subjecting the petitioner to suffer
preventive detention under PITNDPS Act.
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HCP No. 201/2024
8. The petitioner came to agitate his grievances through
representation dated 20.05.2024 filed by him that having
gone begging for attention of the respondent No. 2-
Divisional Commissioner, Kashmir and the Government
of Union Territory of Jammu and Kashmir.
9. In his counter affidavit to the writ petition, the respondent
No. 2-Divisional Commissioner, Kashmir, while trying to
defend the exercise of jurisdiction under PITNDPS Act,
1988 against the petitioner by reference to his alleged
activities in two criminal cases referable to FIR No.
203/2021 of Police Station, Bijbehara and FIR No.
132/2023 again of Police Station, Bijbehara, came to repeat
the tone and tenor of the grounds of detention as well as
the dossier.
10. However with respect to the pending representation of the
petitioner against his detention, there is not even a whisper
of reference in the entire counter affidavit which came to be
submitted by the respondent No. 2 before this Court on
11.09.2024 meaning thereby that the petitioner’s
representation dated 20th May 2024 remained gathering
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HCP No. 201/2024
dust both before the respondent No. 2-Divisional
Commissioner Kashmir and the Home Department of
Union Territory of Jammu and Kashmir to the extent that
in the counter affidavit, the respondent No. 2-Divisional
Commissioner, Kashmir has reckoned it not worth to
advert himself about the status of the representation so
made by the petitioner against his preventive detention. If
this Court is not being apprised of the fate of the petitioner’s
representation, then one can safely imagine the petitioner
stood no chance of knowing any whisper about the same.
11. Right to representation against preventive detention is a
constitutional right guaranteed under article 22 of the
Constitution of India so as to ensure that in the event of
cause being made out by the detenue against his preventive
detention through his representation then the attention of
the detention order making authority or detention
approving authority is fully engaged to consider the
representation and accord it a disposal by announcing its
fate back to the detenue whose personal liberty is under
peril and who is supposed to know as to what is the
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outcome of the exercise of his constitutional right of
making representation against his preventive detention to
the authority concerned.
12. The Hon’ble Supreme Court of India in case titled Ankit
Ashok Jalan Vs. Union of India and Ors. reported in (2020)
16 SCC 127 came to hold that delay in consideration and
responding with respect to pending representation involving
time period of 1½ month as fatal to the preventive
detention of the detenue. In this judgment, the Hon’ble
Supreme Court of India has come to lay down four basic
principles with respect to matter of dealing with the
representation made against the preventive detention.
13. In the context of the present case, the safeguards
prescribed with respect to the consideration of the
representation made by the petitioner seems to have been
given a go-bye, thereby rendering the preventive detention
of the petitioner vitiated with illegality.
14. Otherwise also respondent No. 2-Divisional
Commissioner, Kashmir in his preventive detention Order
No. DIVCOM-“K”/36/2024 dated 16.04.2024 as well as
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HCP No. 201/2024
grounds of detention in support thereof has not spelled out
as to why the first time dossier submitted by the Senior
Superintendent of Police (SSP), Anantnag vide letter NO.
dated 08.07.2023 remained un-responded from the end of
the respondent No. 2 only waiting for subsequent letter No.
dated 22.3.2024 to come from the end of Senior
Superintendent of Police, Anantnag for resulting in
issuance of preventive detention order against the
petitioner.
15. Thus there is a very serious factual gap obtaining at the
end of the respondent No. 2 in setting into effect PITNDPS
Act against the petitioner which is an illegality and goes to
the root of the preventive detention of the petitioner
vitiating it thoroughly.
16. In view of the aforesaid, the preventive detention of the
petitioner is held to be illegal warranting quashment of
Order No. DIVCOM”K”/36/2024 dated 16.04.2024 read
with approval/confirmation passed by the Government of
Union Territory of J&K, which are accordingly quashed.
The petitioner is ordered to be restored to his personal
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liberty forthwith and for that purpose, the Superintendent,
Central Jail, Kot Bhalwal, Jammu shall ensure that the
petitioner is released from the Central Jail, Kot Bhalwal,
Jammu as soon as possible upon receipt of a copy of this
judgment
17. Detention record as produced is returned back to Mr.
Satinder Singh Kala, learned AAG
18. Disposed of.
(Rahul Bharti)
Judge
SRINAGAR
06.03.2025
Aasif
Whether to be reported Yes/No
Whether to be speaking Yes/No