Jammu & Kashmir High Court – Srinagar Bench
Owais Ahmad Trag vs Ut Of J&K Through Financial on 14 August, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 31.07.2025
Pronounced on: 14.08.2025
LPA No.92/2025 in (HCP 313/2024)
Owais Ahmad Trag
S/O Mohammad Ashraf Trag
R/O Tral Payeen District Pulwama,
Through his father Namely
Mohammad Ashraf Trag
.....Appellant(s)....
Through: Mr. Mohammad Ashraf Wani, Advocate.
Vs
1. UT of J&K through Financial
Commissioner, Home Department,
Civil Secretariat Srinagar/Jammu
2. Divisional Commissioner, Kashmir
..... Respondent(s)..
Through: Ms. Nawbahar, Assisting Counsel vice Mr.
Mohsin Qadri, Sr. AAG
Coram: HON'BLE THE CHIEF JUSTICE.
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
PER OSWAL-J
1. The appellant-petitioner was detained by the respondent No.2-
Divisional Commissioner, Kashmir (for short “detaining authority”)
vide order dated 02.09.2024, in exercise of the powers vested in it
under Section 3 of the Prevention of Illicit Traffic in Narcotic Drugs
2 LPA No. 92/2025
and Psychotropic Substances Act, 1988 (for short “the Act”). The
order dated 02.09.2024 was assailed by the appellant-petitioner
through the medium of HCP No. 313/2024, titled Owais Ahmad Tag
Vs. Union Territory of J&K and another, but, remained unsuccessful
as the petition preferred by the appellant-petitioner was dismissed by
the learned Single Judge vide order dated 18.04.2025.
2. Aggrieved of the order dated 18.04.2025, the appellant-petitioner has
preferred this intra court appeal on the following grounds:-
(a) That the learned writ Court has failed to address the
grounds urged in the HCP preferred by the appellant-
petitioner;
(b) That the learned writ Court has not addressed the issue
raised by the appellant-petitioner that there was no live and
proximate link between the alleged illegal activity
attributed to the appellant-petitioner and order of detention
because the last illegal activity attributed to the appellant-
petitioner was in respect of the year 2023; and
(c) That the writ Court has not addressed the ground urged in
the HCP with regard to the filing of the representation and
consideration thereof because the counter affidavit did not
disclose that the representation was considered and the
result was communicated to the appellant-petitioner.
3. Mr. Mohd Ashraf Wani, learned counsel for the appellant-petitioner
has argued that the learned writ Court has not appreciated the
contention raised by the appellant-petitioner that the grounds of
3 LPA No. 92/2025
detention were stale in nature and that the respondents had not
considered the representation submitted by the appellant-petitioner.
4. Per contra, Ms. Nawbahar learned assisting counsel vice Mr. Mohsin
Qadri, Sr. AAG appearing on behalf of the respondents has argued that
the appellant-petitioner was ordered to be detained taking into
consideration his illegal activities and the learned writ Court has
rightly considered the issue raised by the appellant-petitioner and as
such there is no illegality in the order impugned.
5. Heard counsel for the parties and perused the record including the
detention record submitted by the learned counsel for the respondents.
6. The first contention raised by the appellant-petitioner is that the order
of detention has been issued on the stale grounds and on such stale
grounds, order of detention could not have been issued. The perusal of
the grounds of detention reveal that the appellant-petitioner was
arrested in FIR No.03/2021 under Section 8/29 NDPS Act and FIR
No. 35/22 under Section 8/2022 NDPS Act. The last illegal activity
attributed to the appellant-petitioner is in respect of FIR No.35/2022
registered in the year 2022 and thereafter no illegal activity has been
attributed to the appellant-petitioner after the year 2022 till the passing
of order of detention in the year 2024 warranting the detention of the
appellant-petitioner. The record further depicts that the appellant-
petitioner was enlarged on bail on 09.06.2023 in case FIR No.35/2022
of Police Station, Tral and order of detention came to be passed on
02.09.2024 meaning thereby that the appellant-petitioner was detained
under the Act after one year and three months approximately, when he
4 LPA No. 92/2025
was released on bail and no illegal activity has been attributed to the
appellant in interregnum. This delay of one year and three months is
fatal to the case put forth by the respondents.
7. Law is well settled that there must be live and proximate link between
the grounds of detention and the order of detention and once this link
is snapped, the order of detention cannot be sustained. The order of
detention by virtue of which the appellant-petitioner was detained,
being based on stale incidents, is not sustainable on this ground only.
8. In Sama Aruna v. State of Telangana (2018) 1 SCC 150, the Apex
Court examined a case where stale material was relied upon by the
detaining authority. The Apex Court held that a preventive detention
order that is passed without examining a live and proximate link
between the event and the detention tantamount to punishment without
trial. The Apex Court held:
“17. We are, therefore, satisfied that the aforesaid detention order was
passed on grounds which are stale and which could not have been
considered as relevant for arriving at the subjective satisfaction that the
detenu must be detained. The detention order must be based on a
reasonable prognosis of the future behaviour of a person based on his past
conduct in light of the surrounding circumstances. The live and proximate
link that must exist between the past conduct of a person and the
imperative need to detain him must be taken to have been snapped in
this case. A detention order which is founded on stale incidents, must
be regarded as an order of punishment for a crime, passed without a
trial, though purporting to be an order of preventive detention. The
essential concept of preventive detention is that the detention of a person is
not to punish him for something he has done but to prevent him from doing
it. See G. Reddeiah v. State of A.P.(2012) 2 SCC 389 and P.U. Iqbal v.
Union of India (1992) 1 SCC 434.”
(emphasis added)
9. The other contention raised by the appellant-petitioner is that the issue
in respect of non-consideration of the representation of the appellant-
petitioner by the respondents has not been considered by the writ
Court.
5 LPA No. 92/2025
10. The perusal of the writ petition preferred by the appellant-petitioner
reveals that in Para No.8 of the writ petition it was specifically pleaded
by the appellant-petitioner that he had filed representation through his
father to the Additional Chief Secretary, Financial Commissioner,
Home Department and it is contended by the appellant-petitioner that
his representation was not considered by the respondents.
11. The reply filed by the respondents reveals that in Para 5 of the reply it
is stated that the detenue did not prefer any representation in terms of
the Act. The appellant-petitioner has placed on record the first page of
the representation submitted to the Home Department, Government of
UT of J&K along with postal receipt dated 10.09.2024. Thus, it
becomes crystal clear that the representation was submitted by the
appellant-petitioner to the respondents on 10.09.2024. Once the
representation was sent through registered post then its receipt by the
addressee, i.e., respondent No.1 can be presumed. Thus, it can safely
be held that the representation submitted by the appellant-petitioner
was not considered by the respondents. As such, the respondents are
guilty of violating the mandate of Article 22(5) of the Constitution of
India. Law in this regard is well settled and the Hon’ble Supreme
Court in case titled Jayanarayan Sukul Vs. State of West Bengal
reported in AIR 1970 SC 675 has held in paragraph No.21 as under:-
“21. Broadly stated, four principles are to be followed in regard to
representation of detenus. First, the appropriate authority is bound to
give an opportunity to the detenu to make a representation and to
consider the representation of the detenu as early as possible.
Secondly, the consideration of the representation of the detenu by the
appropriate authority is entirely independent of any action by the
Advisory Board including the consideration of the representation of the
detenu by the Advisory Board. Thirdly, there should not be any delay in
the matter of consideration. It is true that no hard and fast rule can be laid
down as to the measure of time taken by the appropriate authority for
consideration but it has to be remembered that the Government has to be
6 LPA No. 92/2025vigilant in the governance of the citizens. A citizen’s right raises a
correlative duty of the State. Fourthly, ‘the appropriate Government is to
exercise its opinion and judgment on the representation before sending the
case along with the detenu’s representation to the Advisory Board.
If the appropriate Government will release the detenu the Government
will not send the matter to the Advisory Board. If however the
Government will not release the detenu the Government will send the
case along with the detenu’s representation to the Advisory Board. If
thereafter the Advisory Board will express an opinion in favour of release
of the detenu the Government will release the detenu. If the Advisory
Board will express any opinion against the release of the detenu the
Government may still exercise the power to release the detenu.”
(emphasis added)
12. In view of what has been discussed hereinabove, this appeal is
allowed. The order dated 18.04.2025 passed by the learned Writ Court
is set aside and the order of detention bearing No. DIVCOM-
“K”/163/2024 dated 02.09.2024 passed by the respondent No.2-
Divisional Commissioner, Kashmir is quashed. The appellant-
petitioner is directed to be released forthwith if he is not required in
any other case.
13. The detention record be returned to the learned counsel representing
the respondents.
14. Disposed of as above.
(RAJNESH OSWAL) (ARUN PALLI)
JUDGE CHIEF JUSTICE
Jammu
14.08.2025
Madan Verma-Secy
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.