Jammu & Kashmir High Court – Srinagar Bench
Mushtaq Ahmad Mir 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. 239/2024
Pronounced on: 13.03.2025
Mushtaq Ahmad Mir .... Petitioner/Appellant(s)
Through:- Mr. Aasif Wani, 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”/85/2024 dated 18.04.2024 passed by the Divisional Commissioner
Kashmir, (hereinafter to be referred to as „Detaining Authority‟), whereby
the detenu-Mushtaq Ahmad Mir has been placed under preventive detention
in order to prevent him from committing any act within the meaning of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act. The order of
detention has been assailed by the petitioner (hereinafter to be referred to as
„detenu‟) through his wife-Naseema Begum.
02. The detention is sought to be quashed, mainly on the grounds that;
(i) the detention order has been passed without any application of mind as
the grounds of detention are vague, non-existence and stale on which no
representation can be made; (ii) all the material relied upon by the Detaining
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Authority has not furnished to the detenu, enabling him to make an effective
representation; (iii) the grounds of detention are indefinite cryptic and there
is no live link between the last activity and the impugned order of detention
as the Detaining Authority has taken into consideration FIR No. 75 of 2020
registered in Police Station, Kralgund, without considering the fact that the
bail has been granted in the aforesaid FIR; (iv) there are no further activities
alleged against the detenu; and (v) the detenu was not informed about time
within which he can make representation and the respondents have not
considered his representation.
03. The respondents have filed their counter affidavit and produced
the record. It is submitted that none of the legal right of the petitioner has
been infringed. All the material relied upon by the Detaining Authority while
passing the order of detention has been provided to the detenu and same has
been read over and explained to him in the language understood by him. The
activities of the detenu in indulging in narcotic trade were causing adverse
effect in the society and public at large, therefore, his detention was
necessary. The detenu was informed of his right to file a representation.
04. Heard learned counsel for the parties at length and also perused
the record.
05. The grounds of detention state that the detenu is a drug addict and
indulging in drug trafficking, which has a serious impact on the health and
welfare of the people of the area and was organizing and carrying their trade
with intention to drive the youth of the area towards drug menace and
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destroying their life. It is also submitted that detenu was apprehended in FIR
No. 75 of 2020 under section 8/21 of NDPS Act registered with Police
Station Kralgund and at the time of arrest, 35 gm of brown Sugar like
substance was recovered from his possession. The activities of the detenu are
highly prejudicial and will cause adverse effect to the society at large,
therefore, the detenu was detained in accordance with the provisions of the
Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Act.
06. The first ground of challenge is regarding non-application of mind.
Perusal of the material available on record reveals that the grounds of
detention do not reflect any reference to the fact that the detenu has already
been admitted to bail in FIR No. 75/2020. The detenu was arrested in FIR
No. 75 of 2020 under section 8/21 of the NDPS Act, however, he was
granted bail by the Court of Additional Sessions Judge, Handwara on
14.09.2020. This important aspect has, however, not been considered by the
Detaining Authority while passing the order of detention, which reflects total
non application of mind by the Detaining Authority. The Detaining
Authority has, thus, not examined the record meticulously while passing the
order of the detention which renders the same unsustainable. The Authority
while passing the order of detention has to consider all the facts while
arriving at subjective satisfaction regarding detention. The petitioner has
placed on record copy of the order dated 14.09.2020 passed by the learned
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Additional Sessions Judge, Handwara, whereby he was enlarged on bail in a
case arising out of FIR No. 75/2020.
07. In “Anant Sakharam Raut Vs. State of Maharashtra and
another” reported as AIR 1987 SC 137, and has held as under: –
“…We hold that there was clear non-application of mind on the part of
detaining authority about the fact that the petitioner was granted bail when the
order of detention was passed. In the result we set aside the judgment of the
Bombay High Court under appeal, quash the order of detention and direct that
the petitioner be released forthwith.”
08. It was next submitted that there is no live link between the
prejudicial activities of the detenu and the purpose of the detention. There is
undue and long delay between the prejudicial activity of the detenu and
passing of the detention order. The issue regarding the prejudicial activities
of the person and the purpose of detention is based on the facts and
circumstances of each case. This Court has to scrutinize whether the
Detaining Authority has satisfactorily examined such a delay and afforded a
reasonable explanation as to why the delay has occasioned and whether the
casual connection has been broken in these circumstances of the case. There
is no cogent explanation coming forth from the perusal of the ground of
detention with regard to the live link between the prejudicial activities of the
detenu and the purpose of the detention and resultantly, the impugned
detention order is liable to be quashed. In this regard reference is made to the
law laid down in Rajinder Arora v. Union of India and others (2006) 4
SCC 796 and T. A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741.
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09. It was next argued that if Detaining Authority is apprehensive that
in case detenu is released on bail, he may again carry on his criminal
activities, then in such situation, the authority should oppose the bail
application and, in the event, bail is granted, the authority should challenge
such a bail order in the higher forum and that merely on the ground that an
accused in detention is likely to get bail, an order of preventive detention
should not ordinarily be passed. Para 24 of judgment passed in Sama Aruna
v. State of Telangana and another, AIR 2017 SC 2662, reads as under:
“24. There is another reason why the detention order is unjustified. It was
passed when the accused was in jail in Crime No.221 of 2016. His custody
in jail for the said offence was converted into custody under the impugned
detention order. The incident involved in this offence is sometime in the
year 2002-2003. The detenu could not have been detained preventively by
taking this stale incident into account, more so when he was in jail. In
Ramesh Yadav v. District Magistrate, Etah and Ors., this court observed as
follows:
“6. On a reading of the grounds, particularly the paragraph
which we have extracted above, it is clear that the order of
detention was passed as the detaining authority was apprehensive
that in case the detenu was released on bail he would again carry
on his criminal activities in the area. If the apprehension of the
detaining authority was true, the bail application had to be opposed
and in case bail was granted, challenge against that order in the
higher forum had to be raised. Merely on the ground that an
accused in detention as an undertrial prisoner was likely to get bail
an order of detention under the Nation Security Act should not
ordinarily be passed.”
10. There is force in the submission of learned counsel for petitioner
that there is no live link between the last activity and impugned detention
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order because FIR No. 75/2020 has been taken into account by Detaining
Authority while passing order impugned, unmindful of the fact that detenu
has been admittedly bailed out in the said FIR and there have been no further
activities alleged against detenu.
11. In view of the aforesaid facts and circumstances, without adverting
to the other grounds, the impugned order of detention is liable to be quashed.
The detention order No. DIVCOM-“K”/85/2024 dated 18.04.2024, passed
by the Divisional Commissioner, Kashmir, against the detenu is quashed. As
a corollary, respondents are directed to set the detenu at liberty forthwith,
provided he is not required in any other case.
12. Detention record be handed over to learned counsel for the
respondents by the Registry forthwith.
(Sindhu Sharma)
Judge
Srinagar :
13.05.2025
Ram Murti
Whether approved for speaking : Yes/No
Whether approved for reporting : Yes/No