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2025 DIGILAW 134 (JK)

Mushtaq Ahmad Mir v. Union Territory of J&K

2025-03-13

SINDHU SHARMA

body2025
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 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 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 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 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. The petitioner has placed on record copy of the order dated 14.09.2020 passed by the learned 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 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 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.