HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

Reserved on : 23.02.2024.

Pronounced on : 02.04.2024.

Case:- HCP No. 126/2023

Manzoor Ahmad Yatoo, Aged 31 years,

S/o Mohd. Sultan Yatoo,

R/o Heewan Sheeri, Tehsil Narwaw,

District Baramulla

Through his father

Mohd. Sultan Yatoo, Aged 61 years.

…..Petitioner

Through: Ms. Sheeba Khan, Advocate

Vs

1. UT of J&K through Additional Chief Secretary, Home Department,

J&K Govt. Civil Secretariat, Srinagar/ Jammu.

2. Divisional Commissioner, Kashmir.

.…. Respondents

Through: Mr. Sajad Ashraf, GA

Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

JUDGMENT

01. Heard learned counsel for the petitioner as well as for the

respondents. Perused the pleadings in the form of writ petition as

well as counter affidavit and the documents therewith.

02. The petitioner, acting through his father, has petitioned

this Court through the medium of the present writ petition under

article 226 of the constitution of India thereby seeking a writ of 2024:JKLHC-SGR:115

2 HCP No. 126/2023

habeas corpus to earn restoration of his personal liberty which

came to be curtailed by virtue of a preventive detention order

passed by the respondent No. 2 – Divisional Commissioner,

Kashmir acting in exercise of authority under Prevention of Illicit

Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

(“PIT NDPS” in short).

03. The case for preventive detention of the petitioner came

to be put up by the Sr. Superintendent of Police (SSP), Baramulla

by virtue of his letter No. Lgl/PIT-NDPS/2023/2195-98 dated

16.08.2023 thereby submitting a dossier against the petitioner for

seeking his preventive detention under the PIT NDPS Act, 1988.

04. On the basis of the dossier so served, the respondent No.

2– Divisional Commissioner, Kashmir came to draw a subjective

satisfaction by formulating the grounds of detention and

thereupon passing the preventive detention Order No. DIVCOM-

“K”/166/2023 dated 08.09.2023 thereby ordering the preventive

detention of the petitioner in terms of section 3 of the PIT NDPS

Act, 1988 and his detention place to be Central Jail Kotbhalwal,

Jammu for a period to be specified by the Government/Advisory

Board.

05. The grounds of detention underlying the issuance of the

aforesaid preventive detention order narrate that the petitioner 2024:JKLHC-SGR:115

3 HCP No. 126/2023

has developed contacts with drug peddlers operative in Narwaw

belt of district Baramulla and started selling/dealing in drugs to

the youth of Baramulla area and that the petitioner is a member

of an organized drug -trafficking gang working in district

Baramulla. In this regard, a fact is cited with respect to the

petitioner’s involvement in FIR No.54/2023 for alleged

commission of offences under section 8/20 of the Narcotic Drugs

and Psychotropic Substances Act, 1985 (“NDPS Act” in short) by

the Police Station Sheeri for allegedly possessing 26 grams of

charas like substance and 56 tablets of Spasmo Proxyvon.

06. The petitioner was reckoned to be posing a threat to the

health and welfare of people of the area as per the reports

received from the field agencies and thereby leaving no other way

to tame the petitioner in his alleged activities other than by way of

subjecting him to suffer preventive detention.

07. The preventive detention Order No. DIVCOM -

“K”/166/2023 dated 08.09.2023 so passed by the respondent No.

2–Divisional Commissioner, Kashmir came to be confirmed by the

Govt. in terms of an Order No. Home/PB-V/2243 of 2023 dated

03.10.2023 and setting out a one year detention period against

the petitioner and that is how the petitioner is serving the said

detention period. 2024:JKLHC-SGR:115

4 HCP No. 126/2023

08. Against his aforesaid detention, the petitioner came to

put up a written representation dated 12.10.2023 duly received in

the office of the respondent No. 2–Divisional Commissioner,

Kashmir against receipt No. E-3139871 dated 12.10.2023.

09. The petitioner came to institute the present writ petition

on 16.10.2023 thereby challenging the course of action at the end

of the respondents in slapping the preventive detention against

the petitioner. To this writ petition, the respondents came forward

with filing of a counter affidavit on 04.12.2023.

10. In the writ petition, the detention order has been assailed

on number of grounds. This Court, upon perusal of the facts and

circumstances, comes across with some salient aspects which

have vitiating effect on the legality of the preventive detention

order passed against the petitioner.

11. The dossier which came to be submitted by the Sr.

Superintendent of Police (SSP), Baramulla against the petitioner

is through the medium of letter dated 16.08.2023. Now, after the

submission of dossier and b efore the impugned preventive

detention Order No. DIVCOM-“K”/166/2023 dated 08.09.2023

came to be issued by the respondent No. 2 –Divisional

Commissioner, Kashmir, an intervening development of relevance

had come to take place and that was the grant of an interim bail 2024:JKLHC-SGR:115

5 HCP No. 126/2023

by the court of Principal Sessions Judge, Baramulla in terms of

an order dated 19.08.2023 in favour of the petitioner by reference

to his arrest under FIR No. 54/2023 of the Police Station Sheeri.

The date of grant of interim bail being 19.08.2023 means just

three days after the submission of dossier by the Sr.

Superintendent of Police (SSP), Baramulla. This development,

therefore, means that the petitioner had set into process his bail

application prior to framing and submission of dossier by the Sr.

Superintendent of Police (SSP), Baramulla

12. Now, as being the head of the District Police, the Sr.

Superintendent of Police (SSP), Baramulla is supposed to have

been fully aware of the fact that the petitioner had applied for the

bail before a competent court of law and that fact at least ought

to have been duly mentioned in his dossier so as to apprise the

respondent No. 2–Divisional Commissioner, Kashmir about the

fact that the petitioner was also seeking bail in connection with

his arrest relatable to FIR No. 54/2023 being cited as a

prominent fact by the respondent No. 2 – Divisional

Commissioner, Kashmir in his grounds of detention against the

petitioner. So much so, the District Police, Baramulla, through its

Police Station Sheeri, after having come to know about the fact of

grant of interim bail in favour of the petitioner in terms of an

order dated 19.08.2023, had the time at its disposal to 2024:JKLHC-SGR:115

6 HCP No. 126/2023

supplement the information served in the dossier to the

respondent No. 2 – Divisional Commissioner, Kashmir to apprise

him about the fact that in the mean time the petitioner has been

let out on an interim bail by the court of Principal Sessions

Judge, Baramulla so as to keep the respondent No. 2 – Divisional

Commissioner, Kashmir fully abreast of the corresponding

development attending the petitioner. It is pertinent to take notice

of the fact that the impugned detention Order No.DIVCOM -

“K”/166/2023 came to be passed on dated 08.09.2023 , i.e.,

almost 20 days after grant of interim bail in favou r of the

petitioner by the court of Principal Sessions Judge, Baramulla.

13. Thus, this non-disclosure of full state facts concerning

the petitioner by the Sr. Superintendent of Police (SSP) ,

Baramulla vitiated the very process of seeking preventive

detention of the petitioner to the extent of keeping the respondent

No. 2 – Divisional Commissioner, Kashmir and also the Govt. of

UT of Jammu & Kashmir misinformed or say to say half informed

about the true state of facts concerning the petitioner and that

renders the entire detention related exercise against the petitioner

an illegality in itself.

14. In addition, the petitioner’s preventive detention also

stands vitiated by the fact that despite having received a 2024:JKLHC-SGR:115

7 HCP No. 126/2023

representation from the petitioner on 12.10.2023 and till the

filing of the counter affidavit on 04.12.2023 the fate of the said

representation of the petitioner is known only to the respondent

No. 2 – Divisional Commissioner, Kashmir or for that matter the

Govt. of UT of Jammu & Kashmir not being conveyed t o the

petitioner as if the exercise of right of representation by the

petitioner against his preventive detention was an empty formality

in the estimate of the respondents worthy of no indulgence to the

extent of even a lip service of saying rejected.

15. Right to representation is a Constitution of India

guaranteed and granted right under article 22 to a detenu and its

consideration by the Govt. and/or the detention order making

authority is also a corresponding constitutional obligation which

cannot admit of being put to waste or neglect by the Govt. and/

or the detention order making authority except at the cost of

leaving a given preventive detention of such a detenu an illegality.

It is not for a constitutional court to remind the Govt. and/or the

preventive detention order making authority that a representation

made by a detenu against his/her preventive detention admits of

no avoidance or escape of its consideration at their respective

end, whereas it is for the Govt. and/or the preventive detention

order making authority to self-know and remind at its respective

end that a representation, if any, made by a detenu against his/ 2024:JKLHC-SGR:115

8 HCP No. 126/2023

her preventive detention is a matter of compulsive consideration

to be done by the Govt., and/or the preventive detention authority

and, accordingly, duly inform a detenu about the outcome of

consideration of his/her representation.

16. The end situation of the aforesaid facts and

circumstances, therefore, renders the preventive detention of the

petitioner illegal and deserves to be set aside.

17. Accordingly, this Court issues a writ of habeas corpus

thereby quashing the preventive detention Order No. DIVCOM -

“K”/166/2023 dated 08.09.2023 read with confirmation order

passed by the Govt. in terms of Order No. Home/PB -V/2243 of

2023 dated 03.10.2023. The petitioner is directed to be set free to

his personal liberty by the Superintendent of the concerned Jail.

18. Disposed of accordingly.

(RAHUL BHARTI)

JUDGE

SRINAGAR

02.04.2024

Muneesh

Whether the order is speaking : Yes

Whether the order is reportable : Yes

2024:JKLHC-SGR:115