Preventive detention is illegal if the grounds are a verbatim reproduction of the police dossier (non-application of mind) or if there is an unexplained delay in considering and communicating the decision on the detenu's representation, violating Article 22(5) of the Constitution.

JUDGEMENT

1. Through the medium of instant writ petition, Order no. DIVCOM-“K”/179/2024 dated 22.11.2024 passed by Divisional Commissioner, Kashmir – respondent no.2 (detaining authority), whereby detenu, namely, Sheikh Jibran Nisar S/o Nisar Ahmad Sheikh R/o Batwara Srinagar, has been placed under preventive detention with a view to prevent him from committing any of the acts within the meaning of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for short the “Act”) and directing his lodgment in District Jail Udhampur, Jammu, is sought to be quashed.

2. The case set up by the petitioner, in this petition, is that the detenu has been detained without application of mind by detaining authority because impugned detention order has been passed solely on the ground that detenu was accused in FIR no.15/2024 and FIR no.66/2023, but no contraband was recovered from him and therefore his mother approached court of 2nd Additional Sessions Judge, Srinagar, which granted bail vide order dated 25.04.2024.

3. It is further stated by petitioner that detention order has been passed mechanically, relying solely on pendency of criminal cases without assessing whether detenu’s activities posed a continuing threat justifying preventive detention. It is also stated that a per Section 9 of PIT NDPS Act, detenu must be referred to Advisory Board within five weeks of order but despite repeated inquiries, no record exists to show that case was referred to Advisory Board, thereby violating detenu’s statutory right. It is also urged that there is no material to establish that detenu is involved in any organized drug trafficking network or illicit drug trade. Mere registration of FIR or past unproven allegations without any established criminal antecedents cannot form basis for invoking preventive detention under the Act. Impugned detention order was passed on 22.11.2024 whereas FIR against detenu was registered on 15.01.2024 and there is delay of over 10 months between alleged criminal activity and detention order, which snaps the live-link between alleged activity and necessity for preventive detention. Grounds of detention entirely rely on dossier prepared by police authorities without independent satisfaction by detaining authority. Grounds of detention are riddled with vague and unsubstantiated allegations. Learned counsel for placed reliance on Mallada K. Sri Ram vs. State of Telangana and ors; Rajinder Arora vs. Union of India, 2006 (4) SCC 796, and Sushanta Kumar Banik vs. State of Tripura AIR 1964 SC 334; HCP No.40/2024 Mohd. Arief @ Kaka vs. UT of J&K.

4. It is further stated that at the time of execution of detention order, the detenu was not given an opportunity to make a representation and even he was not informed that he has a right to make a representation against his detention to the detaining authority apart from making representation to Government, as is evident from letter dated 12.06.2025 issued by detaining authority to the detenu nor the respondents disclosed to him before whom he can make the representation, and instead he was informed to make representation before an authority which has not passed the impugned detention order which is total violation of rights of the detenu as guaranteed under Article 22 of the Const