Jammu & Kashmir High Court
Date Of Pronouncement : 02.04.2026 vs Ut Of J&K & Ors on 2 April, 2026
Author: Sanjay Dhar
Bench: Sanjay Dhar
2026:JKLHC-JMU:957
Regular List
Serial No. 01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
HCP No. 146/2025
CM No. 6591/2025
Date of pronouncement : 02.04.2026
Uploaded on : 04.04.2026
Rahul Sharma
.....Petitioner
Through:- Mr. Rahul Sharma, Advocate &
Ms. Rupali Sharma, Advocate.
V/s
UT of J&K & Ors.
.....Respondents
Through:- Mrs. Monika Kohli, Sr. AAG.
\
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER (ORAL)
01. The petitioner, through the medium of the present
petition, has challenged order No. PITNDPS 31 of 2025 dated
09.06.2025 (hereinafter referred to as, “the impugned order
of detention”) issued by respondent No. 2 – Divisional
Commissioner, Jammu, whereby, while exercising power
under Section 3(1) of the Prevention of Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Act, 1988
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(hereinafter referred to as, “PITNDPS Act“), the detaining
authority has ordered preventive detention of the petitioner.
02. The petitioner has challenged the impugned order
of detention on the grounds that the detaining authority has
not recorded satisfaction that the conditions imposed upon
the petitioner while granting bail to him in the three FIRs,
which are the subject matter of the grounds of detention, are
inadequate to prevent him from engaging in the activities
relating to drug trafficking. It has been further contended
that the petitioner has not been provided whole of the
material that has formed the basis for formulating the
grounds of detention against him, as such, he has been
unable to make an effective and suitable representation
against the impugned order of detention. It has also been
contended that there has been non-application of mind on
the part of the detaining authority while formulating the
grounds of detention, inasmuch as the grounds of detention
are the verbatim copy of the police dossier. It has been
further contended that the allegations made in the grounds
of detention, as regards the alleged activities of the
petitioner, are vague and lacking in material particulars, on
the basis of which, it was not possible for the petitioner to
make an effective representation against the impugned order
of detention.
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03. It is pertinent to mention here that the petitioner
has also challenged the vires of Sub-clause (5) of Clause (2)
of the Jammu & Kashmir Reorganization (Removal of
Difficulties) Order, 2019 issued vide S.O. 3912(E) of 2019
dated 30.10.2019 seeking a declaration that the PITNDPS
Act, 1988 (Central) is not applicable to the Union Territory of
J&K and Union Territory of Ladakh. However, during the
course of arguments, learned counsel for the petitioner has
submitted that the aforesaid ground of challenge is not
being pressed by the petitioner in the present proceedings.
He has further submitted that the right to urge the aforesaid
ground in an appropriate case may be preserved.
04. The respondents have contested the writ petition
by filing counter affidavit of respondent No. 2, the detaining
authority. In the counter affidavit, it has been submitted
that upon perusal of the dossier submitted by the Senior
Superintendent of Police (SSP), Udhampur, vide his
communication dated 28.08.2025, it was found imperative
to detain the petitioner under the provisions of PITNDPS Act.
According to the detaining authority, the petitioner, after
getting bail, again involved himself in illicit traffic of narcotic
drugs, which was posing a serious threat to public order as
well as health of the people. It has been contended that
ordinary law has failed to prevent the petitioner from
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indulging in drug trafficking, which is clear from the dossier
submitted by the Senior Superintendent of Police (SSP),
Udhampur.
05. Regarding the supply of material to the petitioner,
it has been submitted that the Executing Officer has
provided the relevant documents along with the detention
order and grounds of detention, (total 92 leaves) to the
petitioner and he has been explained the same in the
language, namely, Hindi/Dogri which the petitioner is able
to understand. It has been submitted that the petitioner was
also informed about his right to make a representation to
the Government as well as before the detaining authority. It
has further been submitted that the impugned order of
detention has been confirmed by the Home Department, vide
its order dated 30.06.2025 on the basis of the opinion
rendered by the Advisory Board on 23.06.2025. The
respondents have also rebutted the contention of the
petitioner with regard to constitutional validity of Jammu &
Kashmir Reorganization (Removal of Difficulties) Order, 2019
issued vide S.O. 3912(E) of 2019 dated 30.10.2019.
However, having regard to the fact that learned counsel for
the petitioner has not pressed this ground, the contentions
of the respondents in this regard are not being narrated
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herein. To lend support to their contentions, learned counsel
for the respondents has produced the detention record.
06. I have heard learned counsel for the parties and
perused record of the case including the detention record.
07. The main grounds on which learned counsel for
the petitioner has laid much emphasis for assailing the
impugned order of detention are as under:-
I. That in the present case, the detenue was
enlarged on bail by the competent court in all the
three cases, subject to the conditions laid down in
the bail orders, but the detaining authority, while
passing the impugned order of detention, has not
recorded its satisfaction that the conditions of bail
were not sufficient to restrain the detenue from
indulging in activities relating to drug trafficking.
II. That the grounds of detention, as regards the
alleged activities of petitioner post his release on
bail, are vague and lacking in material particulars,
therefore, it was not possible for the petitioner to
make an effective representation against the order of
detention.
III. That there has been non-application of mind on
the part of the detaining authority while formulating
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2026:JKLHC-JMU:957the grounds of detention, inasmuch as the detaining
authority has recorded that the impugned order of
detention is being passed with a view to prevent the
petitioner from committing any offence under the
PITNDPS Act when the said legislation does not
define any offence at all.
08. In the context of the first ground projected by
learned counsel for the petitioner, if we have a look at the
grounds of detention, the petitioner is shown to be involved
in three FIRs 1) FIR No. 31/2023 of Police Station,
Udhampur for offences under Sections 8/21/22 NDPS Act,
2) FIR No. 544/2023 of Police Station, Udhampur for
offences under Sections 8/21/22 NDPS Act and 3) FIR No.
35/2025 of Police Station, Rehambal for offences under
Sections 8/21/22 NDPS Act. It is recorded in the grounds of
detention that in all these three FIRs, the petitioner has
been granted bail by the competent court. Learned counsel
for the petitioner, while referring to the judgment delivered
by the Supreme Court in “Joyi Kitty Joseph vs Union of
India & Ors.” 2025 (4) SCC 476 , has contended that it
was mandatory for the detaining authority to record
subjective satisfaction that the bail conditions in the case of
petitioner were not adequate to prevent him from indulging
in similar activities. In this regard, learned counsel for the
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petitioner has referred to the following observations of the
Supreme Court made in paras 32 and 35, which are
reproduced as under:-
“32. Likewise, in the present case, we are not
concerned as to whether the conditions imposed by the
Magistrate would have taken care of the apprehension
expressed by the detaining authority; of the detenu
indulging in further smuggling activities. We are more
concerned with the aspect that the detaining authority
did not consider the efficacy of the conditions and
enter any satisfaction, however subjective it is, as to
the conditions not being sufficient to restrain the
detenu from indulging in such activities.
35. The detention order being silent on that aspect, we
interfere with the detention order only on the ground of
the detaining authority having not looked into the
conditions imposed by the Magistrate while granting
bail for the very same offence; the allegations in which
also have led to the preventive detention, assailed
herein, to enter a satisfaction as to whether those
conditions are sufficient or not to restrain the detenu
from indulging in further like activities of smuggling.”
09. From the forgoing analysis of the legal position, it
becomes clear that, it is mandatory for the detaining
authority to record satisfaction that the conditions of bail
granted in favour of a detenue are not sufficient to restrain
him from indulging in such activities. In the present case, no
such satisfaction has been recorded by the detaining
authority while passing the impugned order of detention.
Therefore, the subjective satisfaction recorded by the
detaining authority has become a causality, rendering the
impugned order of detention unsustainable in law.
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10. In the context of second ground that has been
urged by learned counsel for the petitioner, a perusal of the
grounds of detention would reveal that the detaining
authority has, after recording the nature of activities in
which the petitioner was indulging, which led to the
registration of three FIRs against him, proceeded to record
that despite taking several legal actions against the
petitioner, he has continued to take part in illegal drug
trafficking without any sign of remorse. The grounds of
detention, however, are silent as to when, where, and in
what manner the petitioner has indulged in similar
activities. No details or particulars with regard to the
activities alleged to have been undertaken by the petitioner
after his release on bail in the aforesaid FIRs have been
mentioned in the grounds of detention. Even in the
detention record, which has been produced by the learned
counsel for the respondents, there is no report from any
agency indicating the details of the activities in which the
petitioner is stated to have indulged after his release on bail.
In the absence of any such material, even in the record of
detention, and in the absence of details relating to the
alleged activities of the petitioner post his release on bail in
the grounds of detention, it can safely be stated the
allegations levelled against the petitioner are vague and
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lacking in material particulars. Without there being any
particulars with regard to alleged activities of the petitioner
post his release on bail, it was not possible for him to make
an effective and suitable representation against the
impugned order of detention, thereby violating his valuable
constitutional right guaranteed under Article 22(5) of the
Constitution of India. On this ground also, the impugned
order of detention becomes unsustainable in law.
11. The third and last ground that has been urged by
learned counsel for the petitioner while challenging the
impugned order of detention is that there has been non-
application of mind on the part of the detaining authority
while formulating the grounds of detention. In this regard,
the learned counsel has drawn attention of this Court to the
last paragraph of the grounds of detention, in which the
detaining authority has recorded that the detention of the
petitioner is necessary in order to prevent him from
committing any offence under the PITNDPS Act. It is to be
noted that provisions of the PITNDPS Act do not define any
offence. The said legislation has been designed only to
prevent individuals from engaging in illicit traffic in narcotic
drugs and psychotropic substances through preventive
detention. The fact that the detaining authority is not aware
about this legal position shows total non-application of mind
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on his part. The impugned order of detention, therefore,
becomes unsustainable in law on this ground as well.
12. For what has been discussed hereinbefore, the
present petition is allowed and the impugned order of
detention is quashed. The respondents are directed to set
the petitioner at liberty, if not involved in any other offence.
The record is returned to the learned counsel for the
respondents in open Court.
13. So far as the question regarding the constitutional
validity of the Jammu & Kashmir Reorganization (Removal of
Difficulties) Order, 2019 issued vide S.O. 3912(E) of 2019
dated 30.10.2019 is concerned, the same is left open to be
decided in an appropriate case.
(SANJAY DHAR)
JUDGE
JAMMU
02.04.2026
Bunty
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
xxx
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