Jammu & Kashmir High Court – Srinagar Bench
Muzaffar Ahmad Bhat vs Ut Of J&K & Ors on 11 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 22.05.2025
Pronounced on: 11.07.2025
HCP No.393/2024
MUZAFFAR AHMAD BHAT ...Petitioner(s)
Through: - Mr. Shah Ashiq, Advocate.
Vs.
UT OF J&K & ORS ...Respondent(s)
Through: - Ms. Nadiya Assisting Counsel, vice
Mr. Mohsin Qadiri, Sr. AAG.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.
JUDGMENT
1) Through the medium of present petition, the petitioner has assailed
detention order bearing No.DIVCOM-“K”/202/2024 dated 06.12.2024,
issued by Divisional Commissioner, Kashmir under Section 3 of the
Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and
Psychotropic Substances Act, 1988 (hereinafter referred as to “the Act
of 1988”), whereby preventive detention of Muzaffar Ahmad Bhat (the
detenue) has been ordered in order to prevent him from committing any of
the acts within the meaning of the Act of 1988.
2) By the instant petition, veracity and legality of the impugned
detention order has been challenged by the petitioner contending that the
impugned detention order has been passed without application of mind as
the grounds of detention are vague, non-existent and stale on which no
prudent man can make a representation against such allegations. It has been
further contended that the procedural safeguards have not been complied
HCP No.393/2024 Page 1 of 6
with in the instant case, inasmuch as whole of the material has not been
provided to the petitioner. It has been further urged that the representation
filed by the petitioner against his detention has not been considered, as no
result of consideration thereof has been conveyed to the petitioner, thereby
violating his rights guaranteed under the Constitution.
3) The respondents have resisted the petition by filing their reply
affidavit, wherein they have contended that the detenue developed contacts
with drug peddlers operating in his area and he started selling the drugs to
the youth. It has been contended that the detenue was exposing the young
and gullible minds including school going children into the heinous world
of drugs and making them habitual addicts. It has been further contended
that the detenue was an active member of a larger drug mafia who was
relentlessly involved in drug trafficking not only in the local area of his
residence but also in the surrounding areas. It has been contended that the
detenue was involved in case FIR No.12/2024 for offences under section
8/20 NDPS Act registered with Police Station D. H. Pora Kulgam. It has
been further contended that with a view to prevent the detenue from
committing any offence under the provisions of the Act of 1988, his
detention was ordered in terms of the impugned order. It is pleaded that
whole of the material that formed basis of the grounds of detention has been
furnished to the detenue and the same was read over and explained to him.
It has been averred that the impugned detention order has been passed after
adhering to all legal, statutory requirements and constitutional guarantees.
In order to buttress their stand taken in the counter affidavit, the
respondents have produced the detention record.
HCP No.393/2024 Page 2 of 6
4) I have heard learned counsel for parties and perused the record.
5) Learned counsel for the petitioner, while seeking quashment of the
impugned order, projected various grounds but his main thrust during the
course of arguments was on the following grounds:
(i) That there has been non-application of mind on the
part of the detaining authority while formulating the
grounds of detention against the petitioner.
(ii) That representation of the petitioner against the
impugned order of detention has not been
considered by the respondents thereby violating his
statutory and constitutional rights.
(iii) That the detenue has not been provided the whole of
the material, which prevented him from making an
effective representation against his detention.
6) With regard to first ground, learned counsel for the petitioner has
contended that in the grounds of detention, it has been mentioned that the
petitioner was found to be involved in multiple FIRs but, while giving
details of these FIRs, only one FIR bearing No.12/2024 has been mentioned
in the grounds of detention. This, according to the learned counsel, reflects
non-application of mind on the part of the detaining authority.
7) A perusal of the grounds of detention reveals that it has been alleged
therein that the petitioner is a history sheeter which is evident from multiple
FIRs registered against him. It is further indicated in the grounds of
detention that the details of FIRs whereunder the petitioners was
apprehended under the provisions of the NDPS Act have been shown as
only one FIR i.e. FIR No.12/2024 of P/S D. H. Pora. The fact that the
petitioner has been shown to be involved in only one FIR contradicts the
assertion of the detaining authority that the petitioner is a history sheeter
and is involved in multiple FIRs. This clearly exhibits non-application of
HCP No.393/2024 Page 3 of 6
mind on the part of the detaining authority. Even the detention record doesnot contain anything to even remotely suggest that the petitioner is involved
in any FIR other than the one which is mentioned in the grounds of
detention. This mechanical functioning of the detaining authority while
formulating the grounds of detention against the petitioner makes the
impugned order of detention unsustainable in law.
8) Next it has been contended that the representation of the petitioner
against the impugned order of detention has not been considered by the
respondents thereby violating his statutory and constitutional rights.
9) In the above context, the petitioner has placed on record a copy of
the representation dated 17.12.2024 along with his writ petition (Annexure-
V). He has also placed on record postal receipts dated 17.12.2024, which
indicates that the representation has been sent to the Principal Secretary to
Government, Home Department and the detaining authority.
10) The record produced by the respondents reveals that the
representation of the petitioner has considered by the detaining authority
and the same has been rejected on 09.01.2025. Thus, it is an admitted fact
that the respondents had received the representation of the petitioner against
the impugned order of detention but result thereof has not been conveyed
to the petitioner. The respondents have not placed on record anything to
show that the order of rejection of representation was conveyed to the
petitioner. It is not coming forth from the record produced by the
respondents as to whether the result of the representation has been
conveyed to the petitioner. The Supreme Court in Sarabjeet Singh Mokha
vs. District Magistrate, Jabalpur and others, (2021) 20 SCC 98, while
HCP No.393/2024 Page 4 of 6
dealing with the effect of failure to communicate the result of therepresentation has held that failure in timely communication of the rejection
of the representation is a relevant factor for determining the delay that the
detenue is protected under Article 22(5). It has been further held that failure
of the government to communicate rejection of detenue’s representation in
a time bound manner is sufficient to vitiate the detention order.
11) So far as the next ground of challenge is concerned, a perusal of the
material on record reveals that the petitioner has received eight leaves
comprising of copies of detention order, letter addressed to him and the
copy of grounds of detention. The grounds of detention bears to FIR
No.12/2024 registered with P/S D. H. Pora. It was incumbent upon the
respondents to furnish not only copy of the FIR but also the statements of
witnesses recorded during investigation of the said FIRs and other material
on the basis of which petitioner’s involvement therein is shown, which has
not been done. Thus, contention of the petitioner that whole of the material
relied upon by the detaining authority, while framing the grounds of
detention, has not been supplied to him, appears to be well-founded. Even
the copy of the dossier of detention has not been supplied to the petitioner.
Obviously, the petitioner has been hampered by non-supply of these vital
documents in making an effective representation before the Advisory
Board, as a result whereof his case has been considered by the Advisory
Board in the absence of his representation, as is clear from the detention
record. Thus, vital safeguards against arbitrary use of law of preventive
detention have been observed in breach by the respondents in this case
rendering the impugned order of detention unsustainable in law.
HCP No.393/2024 Page 5 of 6
12) It needs no emphasis that the detenue cannot be expected to make an
effective and purposeful representation which is his constitutional right
guaranteed under Article 22(5) of the Constitution of India, unless and until
the material, on which the detention is based, is supplied to the detenue.
The failure on the part of detaining authority to supply the material renders
the detention order illegal and unsustainable in law. While holding so, I am
fortified by the judgments rendered in Sophia Ghulam Mohd. Bham V.
State of Maharashtra and others (AIR 1999 SC 3051) Ram Krishan
Bhardwaj v. State of Delhi, AIR 1953 SC 318, Shalini Soni v. Union of
India, (1980) 4 SC 544, Nazeer Ahmad Sheikh vs. Additional Chief
Secretary Home, 1999 SLJ 241, and, Thahira Haris Etc. Etc. V.
Government of Karnataka & Ors. (AIR 2009 SC 2184).
13) In view of the above discussion, the petition is allowed and the
impugned order of detention is quashed. The detenue is directed to be
released from preventive custody forthwith provided he is not required not
required in connection with any other case.
14) The detention record be returned to the learned counsel for the
respondents.
(Sanjay Dhar)
Judge
SRINAGAR
11.07.2025
“Bhat Altaf-Secy”
Whether the order is speaking: Yes/No
Mohammad Altaf Bhat
I attest to the accuracy and
authenticity of this document11.07.2025 02:51 HCP No.393/2024 Page 6 of 6