MADASAR @ JUGNU TH HIS FATHER LATIF vs UT OF J AND K TH COMMISSIONER SECRETARY TO GOVERNMENT HOME DEPARTMENT JAMMU AND OTHERS

Supple 143

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

(Through Virtual Mode)

HCP 121/2025

Pronounced on 08 .05.2026.
Uploaded on: 08.05.2026

Madasar @ Jugnu, Age-35 years
S/o Latif, R/o Ward No.10 Near
CMO
Office, Udhampur A/P Dhanori,
Tehsil and District, Udhampur.
Presently lodged at District Jail, Kathua,
Through His Father latif Age-65years
S/o Feroz.Ud. Din F/o Madasar@ Jugnu
R/o Ward No. 10 Near CMO Office,
Udhampur
A/P Dhanori, Tehsil and District
Udhampur .


…Petitioner(s)/Appellant(s).
Through: Mr. Nikhil Padha, Advocate .

Vs.
1. Union Territory of Jammu and
Kashmir through commissioner-cum
secretary to the Government Home
Department Civil Secretariat,
Jammu.

2. Divisional Commissioner, Jammu.

3. Senior Superintendent of Police,
Udhampur.

4. Superintendent, District Jai!, Kathua




...Respondent(s).

Through:

Ms. Monika Kohli, Sr. AAG

CORAM:
HON’BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
JUDGMENT
1. Impugned in the instant petition, filed under the provisions of Article
226 of the Constitution of India by the petitioner-detenu through his
father namely Latif is an order of detention bearing No. PITNDPS 47 of
2025 dated 22.07.2025 issued by respondent No. 2 (hereinafter
HCP (121/2025) P a g e |1

referred to as the “detaining authority” for short) while invoking his
,
powers U/s Section 3 of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988, r/w SRO 247 dated
27.07.1988 (hereinafter referred to as PITNDPS Act for short), whereby
the petitioner/detenu was directed to be detained and lodged in District
Jail Kathua, for a period to be specified by the Government, with a
view to prevent him from engaging in Illicit Trafficking in Narcotic
Drugs and Psychotropic Substances.
2. The petitioner–detenu, through his father Latif, aged about 65 years,
has sought the quashment of the impugned detention order dated
22.07.2025 by issuance of a writ of habeas corpus , inter alia, on the
grounds that same is violative of his guarantees under Articles 21 and
22 of the Constitution of India. That firstly there was no legal
justification for his detention on the mere allegations of his involvement
in two FIRs in which petitioner-detenu already stands enlarged on bail
and secondly the copies of the documents forming the basis of the
impugned detention order were neither furnished nor explained to him
in a language understandable by him, thereby depriving him of his right
to make an effective and timely representation against his detention.
That he was not informed by the detaining authority regarding his
constitutional right to make a representation against his detention
order. That actually the copies of order impugned and grounds of
detention without the supporting documents came to be handed over to
the father of the petitioner-detenu by jail authorities after some days of
HCP (121/2025) P a g e |2

his arrest and detention. That the detaining authority has while merely
acting upon the dossier of respondent No.3 hurried to pass the
impugned order without application of mind and without appreciating
the fact that the petitioner/detenu had already been proceeded under
ordinary criminal law in respect of his alleged accusation. That the
detention of the petitioner on the basis of criminal cases which are
already the subject matter of a pending trials amounts to subjecting him
to double jeopardy. That the respondent No.2 i.e the detaining authority

has not chosen to produce the petitioner before the learned advisory
board, as he had already made a representation to that effect. That the
grounds of detention are the replica of the police dossier without any
application of mind on the part of the detaining authority. That the
petitioner having read upto only standard cannot be supposed to read
and understand the contents of the impugned detention order as well as
the grounds of detention being in English language that came to be
furnished to him after some days of his detention and lodgement in the
jail through his father. That the petitioner was not furnished the whole
material so that he would be make an effective representation to the
Government.

3. The petition has been resisted by the respondents through the memo of
objections on the grounds that same is not maintainable in view of the
fact that detention of the petitioner stands ordered in terms of a valid
and legal order issued by the learned competent authority in exercise of
his powers vested in it u/s 3 (1) of PITNDPS Act. That the
HCP (121/2025) P a g e |3

detention order has been passed by the competent authority upon due
application of mind and compliance with the procedure prescribed
under the statute. That the petitioner has alternate remedy available
under the PITNDPS Act and as such could not have directly invoked
extra writ jurisdiction of this court without proof of violation of any of
his fundamental rights. That the order of detention being a preventive
measure for safeguarding the public interest cannot be challenged in
the manner chosen by the petitioner. That the petitioner is a habitual
offender and is involved in series of criminal cases registered under
NDPS Act. That despite being granted bail in earlier cases he
continued to indulge in Illicit Traffic in Narcotic Drugs and
Psychotropic Substances especially „heroin‟. That the detenu is
involved in the case FIR Nos. 644/2020 and FIR No. 98/2025 both of
P/S Udhampur u/s 8/21/22 NDPS Act and he stands bailed out in both
the said case FIR numbers. That the registration of the said criminal
cases reveals a constant pattern of conduct and establish that petitioner
is actively engaged in narcotic trade. That the detention order
dated 22.07.2025 has been passed by a competent authority on the basis
of cogent credible and relevant material. That the dossier vide No.
Conf/PITNDPS/532-35 dated 15.07.2025 submitted by the SSP,
Udhampur including the other connected documents, surveillance in-
puts and forensic reports contained detailed report of petitioner‟s
involvement in the illicit trade of narcotic drugs. That the detaining
authority applied its independent mind to the material on record and
HCP (121/2025) P a g e |4

was fully satisfied that the activities of the petitioner were prejudicial to
the interests of society and the State. That despite invocation of regular
criminal law, the petitioner/ detenu after being granted bail in the cases
against him continued to indulge in the activities of trafficking in
narcotic substances. That the normal criminal law could not deter the
petitioner/ detenu from continuing his activities of illicit trade in
narcotic substances. That the grounds of detention and all the relied
upon documents were duly communicated to him in the language
understandable by him within the stipulated time. That the detenu was
already informed of his right to make a representation to the
Government and the Advisory Board. That the procedural requirements
under Article 22(5) of the constitution have been strictly followed and
the petitioner has not pleaded any specific procedural lapse or violation
of his rights. That in view of the petitioner‟s continuous and repeated
involvement in Illicit Trafficking in Narcotic Drugs and Psychotropic
Substances, he was recommended for being detained by the Screening
Committee constituted for the purpose to deter him from continuing
his illegal activities of drug trafficking. That the petitioner was carrying
out his illegal activities in a manner deliberately designed to evade
detection, by employing various methods to maintain secrecy, and did
not afford any opportunity to the law and order enforcement agencies to
apprehend him red-handed. That there are well founded reasons and
apprehensions that if the detenu will remain at large, he will continue
to indulge in expansion of his drug peddling net work by involving
HCP (121/2025) P a g e |5

more youths of the area. That the petitioner needs to be kept under
detention so that young generation of the area could be saved from the
evil consequences of his activities.
4. I have heard the learned counsel for the parties who reiterated their
respective stands already taken in the main petition and the memo of
objections.
5. The learned counsel for the petitioner in support of the grounds of
challenge made in the main petition, placed reliance on the judgments
cited as “ Mahipal vs. Rajesh Kuamr and ors Criminal Appeal No.
1843 of 2019 decided on 05.12.2029; Siddaram Satlingappa Mhetre
vs. State of Maharashtra and ors Cril Appl No. 2271 of 2010 decided
on 02.12.2010 ; Muyeeb Shafi Ganie vs. UT of J&K and anr WP(Crl)
st
No. 202/2022 decided on 31 Jan. 2024;
6. The learned counsel for the respondents Ms. Monika Kohli, Sr. AAG
also made reliance on the authoritative judgments cited as “Haradhan
Saha vs. State of W.B (1975) 3 SCC; Anil Sharma vs. UT of J&K and
ors LPA 55/2023 decided on 16.08.2023 & Jahangir Ahmad Dar vs.
UT of J&K and ors LPA No. 12/2023 decided on 12.02.202”.
7. I have perused the instant petition & the counter affidavit filed by the
respondents and have also gone through the detention record furnished
for perusal by the respondents.
8. Keeping in view the aforementioned perusal and the consideration of
the rival arguments advanced on both the sides, this Court is of the
opinion that the impugned detention order dated 22.07.2025 suffers
HCP (121/2025) P a g e |6

from illegality. The, “application of mind” of the Ld. Detaining
Authority and the “inevitability of the detention” which are sine qua
non for passing of a detention order appear to have been compromised
in the instant case. Besides the communication of the order of detention
to the petitioner so as to enable him to make an effective representation
to the concerned authorities at an earliest also does not seem to have
been made effectively in the case.

Section (3) of the PITNDPS Act which confers the power on
the competent authority to make orders for detaining certain persons is
reproduced as hereunder for ready reference:-
3. Powers to make orders detaining certain persons. –– (1) The
“
Central Government or a State Government or any officer of the Central
Government, not below the rank of a Joint Secretary to that
Government, specially empowered for the purposes of this section by
that Government, or any officer of a State Government, not below the
rank of Secretary to that Government, specifically empowered for the
purposes of this section by that Government, may, if satisfied, with
respect to any person (including a foreigner) that, with a view to
preventing him from engaging in illicit traffic in narcotic drugs and
psychotropic substances, it is necessary so to do, make an order
directing that such person be detained. (2) When any order of detention
is made by a State Government or by an officer empowered by a State
Government, the State Government shall, within ten days, forward to
the Central Government a report in respect of the order. (3) For the
purpose of clause (5) of Article 22 of the Constitution, the
communication to a person detained in pursuance of a detention order
of the grounds on which the order has been made shall be made as soon
as may be after the detention, but ordinarily not later than five days, and
in exceptional circumstances and for reasons to be recorded in writing,
not later than fifteen days, from the date of detention.”

9. It is an admitted position, as reflected in the grounds of detention, that
the petitioner- detenu had been enlarged on bail by the competent trial
courts in both the aforesaid FIRs. It was incumbent upon the learned
detaining authority to address itself as to how the normal criminal law
was inadequate to deal with the petitioner, who had already been
HCP (121/2025) P a g e |7

granted bail in the criminal cases registered against him. It is not the
case of the respondents that the petitioner/ detenu had violated any bail
conditions nor is it their stand that they assailed bail orders but did not
succeed and therefore have bonafidely invoked the provisions of the
Act to detain the petitioner with a view to prevent him from repeating
his alleged illegal activities of illicit trafficking in Narcotic drugs. The
order impugned as such is not sustainable in the eyes of law.
In Rekha vs. State of Tamil Nadu, 2011 (5) SCC 244, the Hon‟ble
Supreme Court has held as under :-
“No doubt it has been held in the Constitution Bench
decision in Haradhan Saha's case (supra) that even if a person is
liable to be tried in a criminal court for commission of a
criminal offence, or is actually being so tried, that does not
debar the authorities from passing a detention order under a
preventive detention law. This observation, to be understood
correctly, must, however, be construed in the background of the
constitutional scheme in :16:Articles 21 and 22 of the
Constitution (which we have already explained). Articles
22(3)(b) is only an exception to Article 21 and it is not itself a
fundamental right. It is Article 21 which is central to the whole
chapter on fundamental rights in our Constitution. The right to
liberty means that before sending a person to prison a trial must
ordinarily be held giving him opportunity of placing his defence
through his lawyer. It follows that if a person is liable to be
tried, or is actually being tried, for a criminal offence, but the
ordinary criminal law (Indian Penal Code or other penal
statutes) will not be able to deal with the situation, then, and
only then, can the preventive detention law be taken recourse to.

Hence, the observation in para 34 in Haradhan Saha's
case (supra) cannot be regarded as an unqualified statement that
in every case where a person is liable to be tried, or is actually
being tried, for a crime in a criminal court a detention order can
also be passed under a preventive detention law.”

10. The impugned detention order has been based mainly on the
ground that the petitioner- detenu , despite being involved in a number of
criminal cases and having been enlarged on bail by the competent trial
courts therein, has been allegedly continuing the acts of illicit
HCP (121/2025) P a g e |8

trafficking in narcotic drugs and psychotropic substances. As per the
case of the learned competent authority, the last criminal act allegedly
committed by the petitioner- detenu pertains to the date 01.04.2025, a
period of about three months appears to have elapsed between the said
last occurrence and the passing of the detention order dated 22.07.2025.
As such, there does not appear to be any live and proximate link
between the alleged act and the purpose of detention. It is settled legal
position that an in-ordinate delay in passing the detention order from
the date of the alleged criminal act of the detenu snaps live link
between the two and renders the detention order bad in law.
11. This court in its opinion feels fortified with the authoritative
judgment of the Hon‟ble Supreme Court of India reported in “Rajinder
Arora vs. Union of India and others” AIR 2006 (4) SCC 796, decided
on 10.03.2006. The relevant para of the judgment is reproduced as
under:-
“The conspectus of the above decisions can be
summarized thus: The question whether the prejudicial activities
of a person necessitating to pass an order of detention is
proximate to the time when the order is made or the live link
between the prejudicial activities and the purpose of detention is
snapped depends on the facts and circumstances of each case.
No hard and fast rule can be precisely formulated that would be
applicable under all circumstances and no exhaustive guidelines
can be laid down in that behalf. It follows that the test of
proximity is not a rigid or mechanical test by merely counting
number of months between the offending acts and the order of
detention. However, when there is undue and long delay
between the prejudicial activities and the passing of detention
order, the court has to scrutinize whether the detaining authority
has satisfactorily examined such a delay and afforded a tenable
and reasonable explanation as to why such a delay has
occasioned, when called upon to answer and further the court
has to investigate whether the causal connection has been
broken in the circumstances of each case. Similarly when there
is unsatisfactory and unexplained delay between the date of
order of detention and the date of securing the arrest of the
HCP (121/2025) P a g e |9

detenu, such a delay would throw considerable doubt on the
genuineness of the subjective satisfaction of the detaining
authority leading to a legitimate inference that the detaining
authority was not really and genuinely satisfied as regards the
necessity for detaining the detenu with a view to preventing him
from acting in a prejudicial manner.”

12. The opinion of this Court is also supplemented by another authoritative
Judgment of the Hon‟ble Apex Court cited as “Sushanta Kumar
Banile vs. State of Tripura & Ors”. AIR, 2022 SC 4175, in which, it
has been held that undue and unreasonable gap between the alleged
accusation and the passing of the detention order snaps the live-link
between the two. On the basis of the afore referred authoritative
Judgments, this Court is of the opinion that the Ld detaining Authority
has not applied its mind before passing the impugned detention order.
13. It is the case of the petitioner/ detenu that he was not furnished with the
copies of the detention order, grounds of detention and of the other
record basing the same at the time of his arrest and detention, thereby
preventing him to make an effective in time representation against his
detention order. It is also his case that he was not informed that he has
right to make a representation to the detaining authority as well as to
the Government.

14. The petitioner /detenu has also averred in his petition, that the contents
of the detention warrant and the grounds of detention were not
explained to him in his vernacular language and he was not also
informed that he has a right to make representation to the detaining
authority or to the Govt .
15. The procedural safeguards as mandated under Article 22 (5) of the
HCP (121/2025) P a g e |10

Constitution as well as under Section 3 of the Act appear to have been
observed in breach, and as such the impugned order cannot sustain.
This Court in its opinion is fortified with the authoritative Judgment
of the Hon‟ble Apex Court cited as “ Shalini Soni Vs. Union of India”
(1980) 4 SCC 544: 1981 SCC (Ori) 38 , the relevant portion of which is
reproduced as under:-

“The Article 22 (5) has two facets : (1) communication
of the grounds on which the order of detention has been made;
(2) opportunity of making a representation against the order of
detention. Communication of the grounds pre-supposes the
formulation of the grounds and formulation of the grounds
requires and ensures the application of the mind of the detaining
authority to the facts and materials before it, that is to say to
pertinent and proximate matters in regard to each individual
case and excludes the elements of arbitrariness and automatism
(if one may be permitted to use the word to describe a
mechanical reaction without a conscious application of the
mind). It is an unwritten rule of the law, constitutional and
administrative, that whenever a decision making function is
entrusted to the subjective satisfaction of a statutory functionary,
there is an implicit obligation to apply his mind to pertinent and
proximate matters only eschewing the irrelevant and the remote.
Where there is further an express statutory obligation to
2024:JKLHC-JMU:3904 18 communicate not merely the
decision but the grounds on which the decision is founded. It is
a necessary corollary that the grounds communicated, that is, the
grounds so made known, should be seen to pertain to pertinent
and proximate matters and should comprise all the constituent
facts and materials that went in to make up the mind of the
statutory functionary and not merely the inferential conclusions.
Now, the decision to detain a person depends on the subjective
satisfaction of the detaining authority. The Constitution and the
statute cast a duty on the detaining authority to communicate the
grounds of detention to the detenu. From what we have said
above, it follows that the grounds communicated to the detenu
must reveal the whole of the factual material considered by the
detaining authority and not merely the inferences of fact arrived
at by the detaining authority. The matter may also be looked at
from the point of view of the second facet of Article 22(5). An
opportunity to make a representation against the order of
detention necessarily implies that the detenu is informed of all
that has been taken into account against him in arriving at the
decision to detain him. It means that the detenu is to be
informed not merely, as we said, of the inferences of fact but of
all the factual material which have led to the inferences of fact.
If the detenu is not to be so informed the opportunity so
solemnly guaranteed by the Constitution becomes reduced to an
exercise in futility. Whatever angle from which the question is
HCP (121/2025) P a g e |11

looked at, it is dear that "grounds" in Article 22(5) do not mean
mere factual inferences but mean factual inferences plus factual
material which led to such factual inferences. The 'grounds'
must be self-sufficient and self-explanatory. In our view copies
of documents to which reference is made in the 'grounds' must
be supplied to the detenu as part of the 'grounds'.”

16. It is also the case of the petitioner/ detenu that he was not informed well
in time that he has a right to make an representation against his
detention order to the learned Advisory Board as also sufficient
material for the purpose has not been furnished to him.
17. As per the grounds of detention, the petitioner is alleged to be
involved in two case FIR No. 644/2020 U/s 8/21/22 NDPS Act of
police Stations Udhmapur & FI R No. 98/2025 under same sections of
P/S Udhampur dated 01.04.2025.

18. As itself admitted by the Ld. detaining authority, the petitioner stood
already bailed out in both the case FIR(s) and there was no allegation of
misuse of any bail condition by him. There is also nothing on record
evidencing the fact that the Government through prosecution made any
endeavor to seek the cancellation of the bail orders. The detention order
appears to have been passed about 100 days after the registration of the
last case FIR. So, again the delay in passing the impugned detention
order snaps the required live link between the last incident of
01.04.2025 that led to the registration of the last FIR No. 98/2025
against the detenu and the detention order dated 22.07.2025.

19. It is very needful to mention that the learned counsel for the petitioner
during his arguments interalia contended that the petitioner/detenu was
granted bail in his last case FIR bearing No. 98/2025 of P/S Udhampur
HCP (121/2025) P a g e |12

U/s 8/21/22 NDPS Act by the learned trial court while observing at
para-7 of the bail order that there is nothing on record to suggest that
the accused (petitioner herein) had been indulged in the illegal trade
and the possibility of the accused being himself an addict cannot be
ruled out. The said bail order was passed by the learned trial court at
the advance stage of the trial after perusal of the offence.

20. The reliance on the DDRs dated 02.04.2025 and 19.06.2025 in the
grounds of detention was not justified for ordering the detention order
of the petitioner as being unverified and not booked up by any
complaint, it is settled law that unverified DDRs regarding bald
allegations cannot sustain the detention order.

21. The detaining authority has not also in clear and pellucid manner
mentioned in the grounds of detention as to how the normal criminal
law failed to prevent the petitioner/ detenu from repeating the
commission of crime. In all cases of detention which are based on the
criminal cases registered against the detenu , it is incumbent upon the
detaining authority to record in the grounds of detention as to whether
ordinary criminal law had not prevented such person so as to draw
satisfaction to order preventive detention. In none of the cases against
the petitioner, as mentioned in the grounds of detention, a commercial
quantity of narcotic drugs or psychotropic substances is alleged to have
been recovered from the possession of the detenu . The same thing is
borne out from the bail orders of the learned trial court. So, the non-
application of mind and the lack of subjective satisfaction is discernable
HCP (121/2025) P a g e |13

in the facts and circumstances of the case.

22. The preventive detentions need to be passed with great care and caution
keeping in mind that a citizens most valuable and inherent human right
is being curtailed. The arrests in general and the preventive detentions
in particular are an exception to the most cherished fundamental right
guaranteed under Article 21 of the Constitution of India. The preventive
detentions are made on the basis of subjective satisfaction of the Ld.
detaining authority without being backed by an immediate complaint as
in the case of the registration of the FIR and, as such, is a valuable trust
in the hands of the trustees. The provisions of Clauses (1) and (2) of
Article 22 of our Constitution are not applicable in the case of
preventive detentions. So, the provisions of Clause (5) of the Article 22
of our Constitution and the provisions of Section (3) of the PITNDPS
Act requiring for application of mind, subjective satisfaction,
inevitability of the detention order, proper communication of the
grounds of detention and the information of liberty to make a
representation against the detention order are the imperative and
inevitable conditions rather requirements for passing of a detention
order.


23. For the foregoing discussion the impugned detention order No. PIT
NDPS Act 47 of 2025 dated 22.07.2025 appears to be outcome of non-
application of mind. The petitioner/ detenu appears to have been
prevented from making an earliest representation in respect of his
detention order. There also appears to be no live link between the
HCP (121/2025) P a g e |14

grounds of detention and the detention order. The procedural safeguards
mandated under Article 22(5) of the Constitution and section 3(3) of the
PIT NDPS appear to have been compromised. The petitioner/detenu has
already suffered about 10 months detention pursuant to the impugned
order.


24. Accordingly, the petition is allowed and the impugned detention order
bearing No. PITNDPS 47 of 2025 dated 22.07.2025 passed by
respondent No. 2 i.e., Ld. Detaining Authority, Jammu, is quashed

with the direction to the respondents to release the petitioner/ detenu
from his preventive custody in the instant case, provided he is not
involved in any other case.

25. The record is ordered to be returned to the office of the learned Sr.
AAG against proper acknowledgement.

26. Disposed of.

(Mohd Yousuf Wani)
Judge

Srinagar:
08.05.2026 .
“ ayaz ”
i)Whether the judgment/order is speaking. Yes
ii) Whether approved for reporting. No

HCP (121/2025) P a g e |15



Syed Ayaz Hussain
2025.11.19 13:56
I attest to the accuracy and
integrity of this document