Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Javed Iqbal Wani has quashed an order of preventive detention issued under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, holding that the detention violated constitutional safeguards. The court directed the petitioner’s release from preventive custody unless required in any other matter. The decision was based on findings that the authorities failed to consider the petitioner’s representation, thereby breaching Article 22(5) of the Constitution of India. The court further held that the Advisory Board acted beyond its authority by deciding the representation, which it had no legal power to do.

The matter arose from a petition invoking Article 226 of the Constitution seeking quashing of Order No. PITNDPS 52 of 2024, dated 21 December 2024, issued by the Divisional Commissioner, Jammu under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988. The petitioner alleged that the detention order was issued in an unreasonable and arbitrary manner without proper application of mind. The grounds of detention, according to the petitioner, were merely a reproduction of the police dossier and failed to record the required subjective satisfaction that he was engaged in illicit drug trafficking posing a threat to public health and welfare.

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It was further contended that the detention documents were not provided within the stipulated period and were neither explained in a language understood by the petitioner nor accompanied by translated copies of Urdu documents. The petitioner, described as illiterate, alleged that without these translations, he could not make an effective representation. The documents supplied were alleged to be illegible, and key investigation records such as FIRs, challans, and witness statements were not furnished.

The detention was said to be based on two criminal cases and a complaint under Section 129 BNSS, none of which, the petitioner argued, indicated involvement in illicit drug trafficking. The petitioner claimed that the Section 129 complaint was politically motivated and beyond the scope of that provision. He alleged confusion as to whether his detention was under the PIT NDPS Act for drug trafficking or under the J&K Public Safety Act for public order concerns.

The petitioner further argued that procedural safeguards under the Act of 1988 were not followed and that the Divisional Commissioner lacked jurisdiction. The powers under the Act, he asserted, must be exercised in a just, fair, and reasonable manner, not whimsically. The time gap between the alleged offences and the detention order was also raised as a ground, arguing there was no "live link" justifying preventive detention. He sought quashing of the order and compensation of fifty lakh rupees for violation of his fundamental right to personal liberty.

In reply, the detaining authority opposed the petition, asserting that no constitutional, legal, or statutory right had been violated. The authority stated that the Senior Superintendent of Police, Kathua, submitted a dossier on 17 December 2024 recommending detention under the Act. Upon examining the dossier and related records, the Divisional Commissioner concluded that preventive detention was necessary to prevent the petitioner from engaging in illicit drug trafficking, as ordinary law had failed to deter him. It was claimed that at the time of execution, all relevant documents, including the detention order and grounds (totalling 76 leaves), were provided and explained in English, Hindi, and Dogri, languages the petitioner understood. The petitioner was also informed of his right to make a representation.

The authority stated that the order was confirmed by the Home Department on 13 January 2025 following the Advisory Board’s opinion dated 21 January 2025. A rejoinder by the petitioner alleged that a representation filed on 8 January 2025 before respondents 1 and 2 had not been independently decided, and the rejection was communicated only on 4 February 2025 by jail authorities.

During the hearing, the petitioner’s counsel pressed two grounds: first, that the representation to respondent 1 was decided belatedly after the Advisory Board’s opinion without independent consideration; and second, that the representation to respondent 2 was never considered. This, it was argued, breached Article 22(5) of the Constitution.

The court recorded that preventive detention laws require strict compliance with procedural safeguards and that Article 22(5) grants a "most cherished valuable right" to a detenue to make a representation against detention. "If there is any infraction of that right, the detention is rendered bad and illegal," the judgment stated.

Citing Supreme Court precedents, including Kamlesh Kumar Ishwardas Patel v. Union of India (1995) 4 SCC 51, the court noted: "The right provided under Article 22(5) of the Constitution has the same force and sanctity as any other provision relating to fundamental right and the said fundamental right available to the detenue must be enforced irrespective of the nature of activities the detenue is involved."

The court further quoted from the same precedent: "Where the detention order has been made under Section 3 of the... PIT NDPS Act by an officer specially empowered... the person detained has a right to make a representation to the said officer and the said officer is obliged to consider the said representation and the failure on his part to do so results in denial of the right... This right to make a representation necessarily implies that the person detained must be informed of his right... and the failure to do so results in denial of the right."

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Examining the records, the court found that the petitioner’s representation dated 11 January 2025 was received by respondent 2 but was not considered because the detention record had been sent to the Advisory Board a day earlier. The Advisory Board, upon receipt of the case, considered and rejected the representation, stating there was no substance in it. The court held that the Advisory Board had "illegally arrogated upon itself a power that the law has never vested unto it", as its function is purely advisory, and it cannot decide representations.

The court concluded: "Respondents 1 and 2 have violated the cherished and valuable right of the petitioner enshrined under Article 22(5) of the Constitution... and have in essence shunned their statutory and constitutional obligation to consider the said representation."

Based on its findings, the court ordered: "The instant petition succeeds, as a consequence whereof impugned Order No. PITNDPS 52 of 2024, dated 21.12.2024, is quashed, with a direction to the respondents to release the petitioner from the preventive detention, unless is required in any other case."

The court directed that the detention record produced by the respondents’ counsel be returned in open court.

Advocates Representing the Parties:

For the Petitioners: Mr. Jagpaul Singh, Advocate

For the Respondents: Mrs. Monika Kohli, Sr. AAG with Ms. Priyanka Bhat, Advocate

Case Title: Nek Ram @ Satnam v. UT of J&K and Ors.

Case Number: HCP No. 11/2025 CM No. 2666/2025

Bench: Justice Javed Iqbal Wani