Preventive detention orders must comply with constitutional safeguards, including the right to effective representation, and failure to provide necessary material renders such orders invalid.

JUDGMENT :

1) The Divisional Commissioner, Kashmir, in exercise of powers conferred under Section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (hereinafter referred as to “the Act of 1988”), has, vide order No.DIVCOM-“K”/53/2024 dated 16.04.2024, ordered preventive detention of Parvaiz Ahamd Khan (hereinafter referred to as the detenue), in order to prevent him from committing any of the acts within the meaning of the Act of 1988.

2) By the instant petition, veracity and legality of the impugned detention order has been challenged by the petitioner contending that the impugned detention order has been passed without application of mind as the grounds of detention are vague, non-existent and stale on which no prudent man can make a representation against such allegations. It has been further contended that the procedural safeguards have not been complied with in the instant case, inasmuch as whole of the material has not been provided to the petitioner. It has been further urged that there has been non-application of mind on the part of detaining authority while passing the impugned detention order as the detenue was already admitted to bail in the FIR, mention whereof has not been made in the grounds of detention but the said fact is not mentioned in the grounds of detention.

3) The respondents, in their counter affidavit, have contended that the detenue developed contacts with drug peddlers operative in Sopore area and started selling drugs among the youth of the said area. It has been further contended that the detenue was a part and active member of a larger drug mafia who were relentlessly involved in drug trafficking not only in Sopore but also in the surround arears and that his activities had posed serious threat to the health and welfare of the people, especially youth of Sopore which had an adverse impact on the national economy. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same was read over and explained to him and that all the statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority while passing the impugned detention order. To substantiate their stand taken in the counter affidavit, the respondents have produced the detention record.

4) Learned counsel for the petitioner, while seeking quashment of the impugned order, projected various grounds but his main thrust during the course of arguments, was on the following grounds:

(i) That there has been non-application of mind on the part of the detaining authority as the detenue has already been admitted to bail in FIR No.19/2023 registered with P/S Bomai, but this fact has not been mentioned in the grounds of detention.

(ii) That the material that formed basis of the grounds of detention has not been supplied to the petitioner.

(iii) That the petitioner had made a representation to the respondents against the impugned order of detention but the result thereof has not been conveyed to him.

5) So far as the first ground of challenge is concerned, from a perusal of the material available on file, the ground regarding non-application of mind on the part of the detaining authority appears to be forceful, inasmuch as the grounds of detention do not bear any reference to the fact that the petitioner had already been admitted to bail in FIR No.19/2023 registered with P/S Bomai in terms of the order passed by the court of competent jurisdiction. The petitioner has placed on record a copy of order dated 21.12.2023 passed by learned Additional Sessions Judge, Sopore, whereby he has been enlarged on bail in a case arising out of FIR No.19/2023 for offences under Section 8/22 of NDPS Act of P/S Bomai. The non-mentioning of this important fact in the grounds of detention exhibits non-application of mind on the part of detaining authority. In