The failure to consider a detenue's representation against preventive detention violates Article 22(5) of the Constitution, rendering the detention invalid.

JUDGMENT :

1. The detenue through his brother has filed the instant petition to challenge the order No. DIVCOM-K/04/2024 dated 27.01.2024, for short impugned order, in terms whereof the detenue Shahid Manzoor Dar S/o Manzoor Ahmad Dar R/o Mohalla Mir Sahib District Baramulla has been detained by respondent No. 2 under preventive detention in terms of the provisions of "Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988" on variety of grounds taken in the memo of the petition.

2. Upon notice,; the respondents have appeared and filed their counter affidavit resisting the claim of the petitioner.

Brief Facts:

3. The detenue, a resident of Baramulla, is stated to have been arrested by Police Station Baramulla in connection with FIR No. 168/2023 for the commission of offences punishable in terms of Sections 8/21,29 NDPS Act on 23.08.2023, wherein he was admitted to bail by the competent court of jurisdiction. The detenue has subsequently been detained under the provisions of „Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1988‟ on account of his involvement in the above said FIR.

4. The detenue is stated to have been an active, notorious and illicit drug peddler having worked as a member of the drug trafficking network to lure the youth of the area towards the drug menace. The detenue was accordingly booked in case FIR No. 168/2023 registered in Police Station Baramulla for the commission of offences punishable in terms of section 8/21,29 NDPS Act. However, the detenue continued his activities without any remorse and was thus detained under the provisions of the „Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988‟ by the impugned order.

5. The petitioner has challenged the impugned order inter-alia on the grounds that the order is violative of the fundamental rights and statutory procedural safeguards of the detenue; is vague, irrelevant, non-existent and lacks specific character; the order suffers from non-application of mind; it does not specify as to how the ordinary criminal law could not have been effective against the detenue; it does not specify the compelling reasons for invoking the preventive laws against the detenue; the grounds of detention and other requisite material were proclaimed in a hyper technical language i.e. English and the detenue failed to understand the same and resultantly the detenue was not able to file a representation against his detention; the impugned order has been issued in disregard of the fact that the detenue had been bailed out for his alleged involvement in a substantive non-bailable offence.

6. Per contra the respondents in their counter affidavit have, while refuting the allegations of the petitioner, stated that the detenue is involved in case FIR No. 168/2023 of police station Baramulla for the commission of offences punishable under section 8/21,29 NDPS Act. The detenue had developed contacts with drug peddlers who were dealing in and selling the drugs among the youth of the area which had an adverse effect on the younger generation and the national economy. The detenue was detained under preventive detention to prevent him from continuing with the trade and to spoil the young generation of the Union Territory.

7. Heard learned counsel for the parties and perused the material on record.

8. Learned counsel for the petitioner has laid emphasis only on two grounds viz; the non-application of mind on the part of the detaining authority and the non-supply of material to the detenue thereby preventing him from making a representation against his detention.

9. It appears from the perusal of the record that the detenue was involved in case FIR No. 168/2023 of Police Station Baramulla wherein he has been bailed out by the Court of 1^st Additional Session Judge, Baramulla on 20.09.2023. It also does not come to fore as to whether the detenue after having been bailed out has again been involved in the allege