Jammu & Kashmir High Court
Neelam Devi (Age 40 Years) vs Union Territory Of J&K Through … on 30 June, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 05.06.2025.
Pronounced on : 30.06.2025.
HCP No. 22/2025
Neelam Devi (Age 40 years)
W/o Lt. Tarsem Lal
R/o Dinday Khurd, Bishnah,
District Jammu
Through her son Sunil Kumar (Age 24 years).
.....Petitioner
Through: Mr. Tanveer Ahmad Khan, Advocate
Vs
1. Union Territory of J&K through Principal Secretary to Govt., Home
Department, Civil Secretariat, Jammu.
2. Divisional Commissioner, Jammu.
3. Senior Superintendent of Police, Jammu.
4. Superintendent District Jail, Udhampur, 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.
02. Perused the writ pleadings and the documents
therewith. Also perused the detention record produced from
the end of the respondents.
2 HCP No. 22/2025
03. The petitioner-Neelam Devi, who is a 40 years old
woman, has preferred this writ petition through her son-
Sunil Kumar, thereby seeking quashment of a preventive
detention order passed by the respondent No. 2 – Divisional
Commissioner, Jammu under the Prevention of Illicit Traffic
in Narcotic Drugs and Psychotropic Substances Act, 1988
(“PIT-NDPS Act, 1988” in short) as a result whereof the
petitioner is suffering preventive detention custody being
lodged in the District Jail, Udhampur meant to last for full
period of one year.
04. The petitioner was reckoned to be a person
allegedly involved in the activities falling within the mischief
of PIT-NDPS Act, 1988 and, therefore, the respondent No. 3 –
Sr. Superintendent of Police (SSP), Jammu by virtue of letter
No.CRB/Dossier/2024/64/DPOJ dated 11.12.2024
submitted a dossier and other connected documents before
the respondent No. 2 – Divisional Commissioner, Jammu
thereby seeking the preventive detention of the petitioner.
05. In his said dossier, the respondent No. 3 – Sr.
Superintendent of Police (SSP), Jammu came to provide the
social background of the petitioner to be a widow aged 40
years being unable to carry out her ordinary pursuits and so
3 HCP No. 22/2025
getting involved and engaged in illegal drug activities with a
view to earn money easily and with a passage of time turning
into a notorious drug peddler running illegal trade of
narcotics starting from Ganja and Chitta by procuring it at
cheap prices and then selling the same at expensive prices by
luring the young generation towards drug menace.
06. In this regard, the petitioner’s implication in FIR
No. 190/2022 registered by the Police Station Bishnah for
alleged commission of offences under section 8/21/22 of the
Narcotic Drugs and Psychotropic Substances Act, 1985
(“NDPS Act, 1985” in short) came to be highlighted. The
petitioner’s involvement in FIR No. 149/2024 again registered
by the Police Station Bishnah for alleged commission of
offence under section 8/20/27(A) of NDPS Act, 1985 was also
cited. By reference to aforesaid two FIRs, the petitioner was
said to have been booked and challaned before courts of law.
07. In addition to the implication and involvement of
the petitioner in aforesaid criminal cases related to two FIRs,
by reference to the purported inputs from the concerned Beat
Incharge and Incharge DSB the petitioner was referred to be
clandestinely carrying out activities of illicit trade of narcotic
4 HCP No. 22/2025
drugs in Bishnah and its adjoining areas. The petitioner is
said to have been bailed out in aforesaid two criminal cases.
08. Proceeding at his end upon the said dossier, the
respondent No. 2 – Divisional Commissioner, Jammu came to
formulate the grounds of detention by literally borrowing the
text of the dossier highlighting the petitioner’s implication
and involvement in a criminal cases related to FIR No.
190/2022 & FIR No. 149/2024 of the Police Station Bishnah
and held that the petitioner’s reported alleged activities are
falling within the mischief of PIT-NDPS Act, 1988 and,
therefore, in order to prevent her from further committing
any offence under the PIT-NDPS Act, 1988 and to secure the
health and welfare of the public at large, the petitioner
deserves to be subjected to preventive detention custody.
09. On the basis of the subjective satisfaction so
drawn, the respondent No. 2 – Divisional Commissioner,
Jammu came to pass an Order No. PITNDPS 51 of 2024
dated 17.12.2024 thereby ordering the preventive detention
of the petitioner and upon her detention to be lodged in the
District Jail, Udhampur for a period to be specified by the
Government.
5 HCP No. 22/2025
10. By virtue of a communication No.601/RA/
Detention/251/CC-7618468 dated 17.12.2024, the
respondent No. 2 – Divisional Commissioner, Jammu meant
to apprise the petitioner about passing of the preventive
detention order against her and upon her detention taking
place her right to make a representation to the Govt. (Home
Department, UT of J&K) as well as to the respondent No. 2 –
Divisional Commissioner, Jammu. A compilation of 42 leaves
was forwarded to be handed over to the petitioner upon her
detention which comprised of three (3) leaves of detention
order, three (3) leaves of grounds of detention and thirty six
(36) leaves of the dossier.
11. The detention warrant came to be executed when
ASI Gurdeep Singh of the Police Station Bishnah came to
detain the petitioner on 19.12.2024 and handed over the
petitioner to the Superintendent District Jail, Udhampur on
the very said date. The petitioner is said to have been handed
over the entire compilation of 42 pages and also explained
about the order and the grounds of detention in the language
understood by her and also apprising her about her right to
make a representation to the Government.
6 HCP No. 22/2025
12. The preventive detention case of the petitioner was
referred to the Advisory Board for its opinion which came to
be tendered on file No.Home/PB-V/645/2024 dated
26.12.2024 thereby holding that the preventive detention of
the petitioner is based upon sufficient cause and all the
procedural compliances have been carried out.
13. The petitioner, acting through her son, came to
submit a written representation to the respondent No. 2 –
Divisional Commissioner, Jammu, sent by registered post
dated 27.12.2024 thereby seeking revocation of the detention
so effected upon the petitioner.
14. On the basis of the confirmation so extended by the
Advisory Board, the Home Department, Govt. of UT of J&K
came to confirm the preventive detention of the petitioner by
issuance of Govt. Order No. Home/PB-V/01 of 2025 dated
03.01.2025 thereby directing the petitioner’s detention for a
period of one year with effect from 19.12.2024 to 18.12.2025
with place of confinement in the District Jail, Udhampur.
15. It is in the backdrop of the aforesaid facts and
circumstances of the case that the institution of the present
writ petition came to take place on 21.01.2025.
7 HCP No. 22/2025
16. In her writ petition, the petitioner has assailed her
preventive detention on the basis of the grounds as set out in
para 8 (a) to (p). It is highlighted in the grounds of challenge
that the detention has been effected upon vague allegations
without any compelling and cogent reason for subjecting the
petitioner to suffer preventive detention. It is asserted in one
of the grounds of challenge that the representation submitted
by the petitioner through her son to the respondent No. 2 –
Divisional Commissioner, Jammu on 27.12.2024 sent
through registered post, has remained un-considered and
un-answered. It has also been pleaded that the passing of the
detention order against the petitioner is an act of non-
application of mind on the part of the respondent No. 2 –
Divisional Commissioner, Jammu as the same is replica of
the dossier.
17. The respondent No. 2 – Divisional Commissioner,
Jammu came to submit a counter affidavit dated 07.03.2025
to meet the allegations and the challenge posed from the end
of the petitioner with respect to her preventive detention.
While controverting all the grounds of challenge registered by
the petitioner in para 8 of her writ petition, the respondent
8 HCP No. 22/2025
No. 2 – Divisional Commissioner, Jammu has come forward
denying all the grounds of challenge.
18. It has been stated in the counter affidavit
preliminary objections (D) and para-wise reply (para 7) that
the representation submitted by the petitioner was
considered and found to be devoid of merits. However, there
is no recital of fact in the counter affidavit from the end of the
respondent No. 2 – Divisional Commissioner, Jammu as to
whether the petitioner was ever apprised of the fact that the
respondent No. 2 – Divisional Commissioner, Jammu had
considered the petitioner’s representation and rejected the
same by a speaking order.
19. When this Court considers the preventive detention
of the petitioner from the point of view of its legality and
validity, the first illegality which comes rushing to be
observed ex-facie is a lacuna in the very text of the grounds
of detention supporting the impugned detention Order No.
PITNDPS 51 of 2024 dated 17.12.2024. The respondent No.
2-Divisional Commissioner, Jammu has exercised powers
under section 3 of the PIT-NDPS Act, 1988. Section 3 vests
power in the detention order making authority to subject a
person to preventive detention with a view to prevent
9 HCP No. 22/2025
him/her from engaging in illicit trafficking in narcotic drugs
and psychotropic substances. As against this statutory
prescription in terms of section 3, the respondent No. 2 –
Divisional Commissioner, Jammu instead has held the
petitioner liable to suffer preventive detention in order to
prevent her from committing any offence under PIT-NDPS
Act, 1988, as found mentioned in the operative part of the
grounds of detention which is the basis for passing of the
impugned Order No. PITNDPS 51 of 2024 dated 17.12.2024.
20. The grounds of detention was served to the
petitioner for her understanding meaning thereby from the
bare reading of the grounds of detention what a lay person
like the petitioner would understand is that PIT-NDPS Act,
1988 is a penal law which prohibits the commission of
offences there under and, therefore, the petitioner has been
booked to suffer detention in order to prevent her from
committing offence under the said PIT-NDPS Act, 1988. This
is where an anomaly came to attend the very basis of exercise
of jurisdiction on the part of the respondent No. 2 –
Divisional Commissioner, Jammu in subjecting the petitioner
to suffer preventive detention by a misconception of bare
provisions of PIT-NDPS Act, 1988.
10 HCP No. 22/2025
21. Another vitiating factor relating to the preventive
detention of the petitioner is that the respondent No. 2 –
Divisional Commissioner, Jammu allowed himself to be
misled by the dossier submitted by the respondent No. 3 –
Sr. Superintendent of Police (SSP), Jammu as well as the
recommendation of the District Screening Committee
forwarded vide communication No.SPHQJ/Rdr/PIT/
24/12938 dated 09.12.2024.
22. In the dossier along with the documents therewith,
there is no reference as to vide which order of the criminal
court the petitioner came to be bailed out in the two cases
related to FIR No. 190/2022 and FIR No. 149/2024. So much
so, there is not even a copy of the bail order/s accompanying
the dossier. What is gatherable from the detention record
produced for the perusal of this Court is that the petitioner’s
alleged involvement and implication in the aforesaid two FIRs
relates to alleged possession of small quantity of alleged
narcotics i.e. Heroine and Ganja respectively.
23. The respondent No. 3 – Sr. Superintendent of Police
(SSP), Jammu without sharing the bail orders related to the
petitioner came to say in his dossier that ordinary criminal
law is not sufficient to deter the petitioner from indulging in
11 HCP No. 22/2025
drug peddling and other illegal activities meaning thereby
that the respondent No. 3 -Sr. Superintendent of Police
(SSP), Jammu became a judge of the state of ordinary
criminal law in operation in the UT of J&K so as to reckon it
as a failure. Possession of a small quantity of narcotics by an
accused is an offence which admits an accused to bail
without suffering the rigor of section 37 of the NDPS Act,
1985 and if that is the position of law then grant of a bail by
a criminal court of law in favour of the petitioner for alleged
possession of small quantity of narcotics was always an act
of judicial discretion exercised by the criminal court which
could not have been conceived and commented upon by the
respondent No. 3 -Sr. Superintendent of Police (SSP), Jammu
as amounting to failure of ordinary criminal law or the
deficiency of criminal law to check the petitioner and thus
leaving preventive detention as only option. Nothing can be
more sadistic a mindset in invoking PIT NDPS Act, 1988 as
exhibited by the Sr. Superintendent of Police (SSP), Jammu.
24. Thus, it is apparent that the preventive detention
custody was with a mood and mode intended to be punitive
upon the petitioner from the very beginning and that is the
reason that in the grounds of detention the respondent No. 2
12 HCP No. 22/2025
– Divisional Commissioner, Jammu was also getting swayed
by the same mindset of preventing the petitioner from
committing an offence under PIT-NDPS Act, 1988 when infact
the said PIT-NDPS Act, 1988 does not create any offence
whatsoever for the respondent No. 2 – Divisional
Commissioner, Jammu to say so in his grounds of detention.
25. While in the dossier, in relation to the antecedents
of the petitioner relatable to the two criminal cases under FIR
No. 190/2022 and FIR No. 149/2024, the inputs in terms of
General Diary No. 22 dated 06.12.2024 and 016 dated
08.12.2024 of the Police Station Bishnah were referred, but
the respondent No. 2 – Divisional Commissioner, Jammu in
his grounds of detention did not deem the said inputs worth
a mention and basis for drawing subjective satisfaction and,
therefore, in the grounds of detention there is no such
mention made about said two adverse General Diary entries
relatable to the petitioner.
26. Thus, it is only on the basis of said two FIRs and
the criminal cases arising out of the same that the
respondent No. 2 – Divisional Commissioner, Jammu felt
persuaded to penalize the petitioner with preventive detention
custody as if meaning to substitute the criminal court of law
13 HCP No. 22/2025
seized of the trial of the petitioner in dealing with the
petitioner and thereby fast forward punitive punishment
upon the petitioner.
27. The representation submitted by the petitioner, no
doubt, came to be considered by the respondent No. 2 –
Divisional Commissioner, Jammu and rejected vide his Order
No. 6011/RA/PITNDPS/REP/CC-7624123 dated 11.01.2025
but for the reasons best known to the respondent No. 2 –
Divisional Commissioner, Jammu, the petitioner was never
ever extended a courtesy of being provided with a copy of the
said rejection order so as to apprise her not only about the
fate of her representation but also the basis for which the
same has been found to be without merit. This omission on
the part of the respondent No. 2 – Divisional Commissioner,
Jammu is too serious to be taken as casual by this
constitutional court in considering the writ petition of the
petitioner in adjudging the legality and validity of the
preventive detention of the petitioner.
28. Cumulative effect of the aforesaid facts and
circumstances of the case render the preventive detention of
the petitioner illegal, and consequently the preventive
detention Order No. PITNDPS 51 of 2024 dated 17.12.2024
14 HCP No. 22/2025
passed by the respondent No. 2 – Divisional Commissioner,
Jammu read with Govt. Order No. Home/PB-V/01 of 2025
dated 03.01.2025 are hereby quashed. The petitioner is held
entitled to be restored to her personal liberty forthwith and
for that the Superintendent of the concerned Jail is directed
to release the petitioner immediately from the preventive
detention custody.
29. Detention record to be returned back to Mrs.
Monika Kohli, learned Sr. AAG by the Registry against proper
receipt.
30. Disposed of.
(RAHUL BHARTI)
JUDGE
JAMMU
30.06.2025
Muneesh
Whether the judgment is speaking : Yes
Whether the judgment is reportable : Yes
Muneesh Sharma
2025.06.30 17:33
I attest to the accuracy and
integrity of this document