DARSHAN SINGH @ DEEPU vs UT OF J AND K TH COMMISSIONER SECRETARY TO GOVERNMENT HOME DEPARTMENT JAMMU AND ANOTHER

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

Sr. No. 03
AT JAMMU




HCP No.127/2025
CM No.5633/2025


Date of pronouncement: 07.05.2026
Date of uploading: 07.05.2026
CR
Darshan Singh @ Deepu
Age 35 years S/o Baldev Singh
R/o Galak (Tardal) Tehsil Billawar
District Kathua.



...Petitioner(s)

Through: Mr. M. K. Bhardwaj, Sr. Advocate with
Mr. Gagan Kohli, Advocate.

Vs



01. UT of Jammu and Kashmir,

through Commissioner/Secretary to Govt.,

Home department Civil Secretariat
Jammu/Srinagar.


02. Divisional Commissioner, Jammu


03. Senior Superintendent of Police, Kathua.
Incharge/Superintendent Central Jail
Kot Bhalwal, Jammu.


…Respondent(s)






Through: Mrs. Monika Kohli, Sr.AAG with

Ms. Nisha Kangotra, Advocate.

CORAM: HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE




JUDGMENT
07.05.2026 (ORAL)






01. Challenge in this petition has been thrown to detention order No.
PITNDPS No.53/2025 dated 13.08.2025, issued by respondent No.2,
vide which, petitioner came to be detained under Prevention of Illicit
Traffic and Narcotic Drugs and Psychotropic Substances Act, 1988
(PITNDPS) and lodged in Central Jail, Kot Bhalwal, Jammu.

02. Background facts of the case are that Senior Superintendent of Police,
Kathua vide his communication dated 06.08.2025 submitted a dossier
and connected documents in respect of the petitioner stating inter alia
that district screening committee had examined case of the petitioner
on the basis of various parameters and found his continuous illegal
activities of drug peddling. The recommending authority elaborated
following criminal cases against the petitioner:

S.No. FIR No. & Offences Police
Quantity Seized
from subject
Status of the case
Station
01. 04/2025 u/s 8/21/22
NDPS Act
Billawar 1.70 gram of heroin Under
Investigation
02. 106/2025 u/s
8/21/22 NDPS Act
Billawar 4.63 gram of heroin Under
Investigation

03. On the basis of aforesaid recommendation, the detaining authority has
come to conclude that petitioner poses a serious threat to the health
and welfare of the people and therefore, with a view to prevent him
from reoffending, it was necessary to detain him.
04. Petitioner is aggrieved of the impugned order of detention inter alia
on the following grounds:
A. That the Preventive detention, as has been held in the cases of
A.K. Gopalan V. State of Madras (1950) SCR 88 and Rekha
Vs. State of Tamil Nade (AIR 2011 SCW 2262), is, by nature,
repugnant to democratic ideas and an anathema to the rule of
law. The Supreme Court in Rekha’s case (supra) emphasized
that article 22(3) (b) of the Constitution of India is to be read
as an exception to article 21 of the Constitution of India and
not allowed to nullify the right to personal liberty guaranteed
under article 21. The Supreme Court further observed that
since article 22(3)(b) of the Constitution of India permits
preventive detention, we cannot hold it illegal but we must
confine the power of preventive detention within very narrow
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limits, otherwise we will be taking away the great right to
liberty guaranteed by Article 21 of the Constitution of India
which was won after long, arduous, historic struggles. It has,
therefore, to be understood that if the ordinary law of the land
(Indian Penal Code and other Penal statutes) can deal with a
situation, recourse to a preventive detention law will be
illegal. The Supreme Court added that it must be remembered
that if, in the case of preventive detention, no offence is
proved and there is no conviction, which can only be
sanctioned by legal evidence, preventive detention is often
described as “jurisdiction of suspicion.” To prevent misuse of
this potentially dangerous power the law of preventive
detention has to be strictly construed and meticulous
compliance with the procedural safeguards, however,
technical, is, in our opinion, mandatory and vital. The
Supreme Court, after putting reliance on the law laid down in
Kamleshwar Ishwar Prasad Patel vs. Union of India and
others (1995) 2 SCC 51 (para 49) observed that the history of
liberty is the history of procedural safeguards. These
procedural safeguards are required to be zealously watched
and enforced by the Court and their rigor cannot be allowed to
be diluted on the basis of the nature of alleged activities of the
detenue. The Supreme Court quotes with approval the
observation made in Ratan Singh Vs. State of Punjab and
others 1981 (4) SCC, emphasizing the need to ensure that the
constitutional and statutory safeguards available to a detenue
are followed in letter and spirit. It observed, but the laws of
preventive detention afford only a modicum of safeguards to
persons detained under them, and if freedom and liberty are to
have any meaning in our democratic set up, it is essential that
at least those safeguards are not denied to the detenues. In the
present case the detention of the petitioner under PITNDPS
Act is illegal, arbitrary, unconstitutional and is violative of
article 14 and 16 of the Constitution of India as the petitioner
has already been enlarged on bail by the Hon’ble Court in the
aforesaid FIRs which has been made the basis to detain under
preventive detention.

B. That the order of detention has been passed by the respondent
NO.2 in a haste without even considering the material before
him properly and without applying his mind to the facts of the
case. As per section 3(3) of the Prevention of Illicit Traffic in
Narcotics Drugs and Psychotropic Substances Act, when a
person is detained in pursuance of detention order, the
authority making the order shall, as soon as may be,
communicate to him the grounds on which the order has been
made. It is to be in language which is understandable by him
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and he shall also be afforded the earliest opportunity to make
representation against the order to the Govt. As already
submitted hereinabove, the petitioner was not conversant with
the language of the detention order and the authority also did
not translate the grounds of the detention order due to which
the petitioner could not make an effective representation
against the order of detention. By putting the petitioner in
preventive detention, respondents have illegally infringed the
right of personal liberty of the petitioner and that too in
violation of the statutory and constitutional provisions and
therefore, the order impugned deserves to be quashed and set
aside on this count.

C. That it is an imperative that the detaining authority has to
record sufficient reasons regarding his satisfaction in the
detention order or in the grounds of detention while detaining
a person but in the present case, the reason recorded by the
detaining authority cannot be held to be a sufficient one. The
petitioner has been detained only on the basis of the FIR’s
filed against him and he has no continuous or repeated
involvement in any illegal narcotic activities in the past except
the aforesaid two FIRs.



D. That the impugned order of detention is otherwise bad, the
petitioner has not been supplied all the documents, translated
copy of statements annexed with the detention order in Urdu.
Since the respondent No.2 has passed the order which is based
on FIRs and statements, he was under obligation to supply all
the material including statements of witnesses and other
related documents in translated version which the petitioner
understand. The Hon’ble Apex Court in case titled Abdul
Latif Abdul Wahab Sheikh V/s BK Jha and Ors. held that the
procedural requirements are the only safeguards available to
the detenue since the Court cannot go behind the subjective
satisfaction authority. The procedural requirements are
therefore required to be strictly complied with, if any value is
to be attached to the liberty of the subject and constitutional
rights guaranteed to him in that record. On this count also the
order impugned unsustainable in the eyes of law.



E. That the detention order is otherwise based on non-application
of mind. The respondent No.2 before passing the order of
detention has not applied his mind and reproduced the same
grounds of detention in virtue as given in the Police Dossier
that the petitioner has been ordered to be detained at District
Jail, Jammu which is against the Police decision of
Government. The Government of Jammu and Kashmir time to
time has taken decision that the petitioner should be lodged in
Jail where he can easily meet their family members and which
should be nearest. The petitioner has been detained at Central
Jail, Kot Balwal where the family members cannot meet him
easily because they are residents of Tardah Galak, Kathua and
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are poor and illiterate, thus the order is bad and as such is
liable to be quashed.

F. That the detention is based upon irrelevant and non-existent
grounds and also the detention is based upon ulterior motives
and the same is liable to be quashed.

G. That even otherwise also the impugned order is bad in the
eyes of law because the person who had detain the petitioner
must also filed an affidavit for an undertaking whereby he
must disclose that he had explained the grounds of detention
to the petitioner in the language which is known to the
petitioner and in the present case there is no such affidavit or
undertaking which is supporting the case.


05. Countervailing the stand of the petitioner, respondents are affront
with the contention that petitioner is a notorious drug peddler. His
activities posed a serious threat to the health and welfare of the
people. Therefore, impugned detention order came to be issued
against the petitioner after due application of mind and careful
examination of dossier submitted by the sponsoring authority.
06. It is contention of the respondents that at the time of execution of the
detention order, the entire relevant material containing 62 leaves
along with grounds of detention were not only supplied to the
petitioner but also explained to him in the language i.e. Hindi and
Dogri which he understood. He was also informed about his right to
make representation before the Government and the detaining
authority. According to the respondents, since ordinary law of the
land failed to deter the petitioner, it was found imperative to detain
him. Respondents have prayed for dismissal of the petition.
07. Having heard learned counsels for the parties, I have gone through the
detention record.
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08. Mr. M.K. Bhardwaj, learned senior counsel appearing for the
petitioner at the foremost has argued that since the material furnished
to the petitioner was not explained to him in the language he
understands, he was prevented from making an effective
representation.
09. A perusal of the detention record, however, would reveal that total 62
leaves including copies of Detention order (03 leaves), notice of
detention (01 leave), grounds of detention (03 leaves), dossier (06
leaves) along with copies of FIR, statement of witnesses and related
relevant material (49 leaves) came to be supplied to the petitioner
against proper receipt. As per the record, those documents were
explained to the petitioner in Hindi and Dogri language which he
understood. Petitioner has put his signatures as an acknowledgment to
the same. Since petitioner has not filed any rejoinder to this
contention of the respondents, therefore, this ground is not available
to him at this stage.
10. Be that as it may, what is evident from a perusal of the grounds of
detention is that impugned order traces its origin to two FIRs against
the petitioner under NDPS Act. In FIR No. 04 of 2025, 01.70 grams
of heroin is stated to have been recovered and in FIR No. 106 of
2025, 04.63 grams of heroin is stated to have been recovered from the
possession of petitioner and status of both the cases is under
investigation. On the basis of these two FIRs, it is allegation of the
detaining authority that continuous illegal activities of the petitioner
has posed a serious threat to the welfare of the people.
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11. In the circumstances, the question which begs consideration of this
Court is whether these allegations would constitute an act of
disturbance of public order.

12. It is by far a crystallized position of law that if ordinary law of the
land is competent to deal with criminal activities of an individual,
recourse to the provisions of preventive detention laws, shall be
illegal because expressions “public order” and “law and order”
operate in different fields with different connotations. If an act has the
potentiality to disturb public order, it is the public at large which is
affected. On the contrary, breach of law by indulging in criminal
activity or in contravention to the provisions of a particular statute
may be termed as a law and order issue but certainly it does not
amount to the disturbance of public order.
13. Reverting to the case on hand, the petitioner is found involved in two
FIRs, whereby small quantity of contraband were allegedly recovered
from his conscious possession and both the cases at the time of
issuance of impugned order are stated to be under investigation. Since
alleged crimes did not culminate in the presentation of final reports
against the petitioner, it does not lie in the mouth of the detaining
authority to say that petitioner is found in continuous illegal activities
of drug peddling. There is nothing in the record to suggest that
ordinary law of land was not found competent to deal with the
situation. Allegations against the petitioner may tantamount to a law
and order problem but they certainly do not fall within category of
“public order”. Therefore, apprehension of the detaining authority or
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the concern expressed by the sponsoring authority that petitioner
poses a serious threat to the health and welfare of the people is
unfounded and cannot form the basis for putting him under preventive
detention.
14. In the context of what has been observed and discussed above, it is
held that a person involved in a couple of criminal activities only
cannot be put under preventive detention if ordinary law of land is
competent to deal with such activities. If relevant provisions of penal
code are sufficient to deal with the activities attributed to a criminal,
recourse to PSA or preventive detention laws is not only illegal but
unconstitutional.
15. Having regard to what has been discussed above, present petition is
allowed and impugned order is quashed. Petitioner is directed to be
released forthwith from preventive custody provided he is not
involved in any other case.
16. Detention record after perusal is returned to learned Sr.AAG.
17. Disposed of along with connected CMs.




(Rajesh Sekhri)
Judge
Jammu
07.05.2026
Eva


Whether the judgment is speaking or not? Yes
Whether the judgment is reportable or not? Yes
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