Jammu & Kashmir High Court – Srinagar Bench
Fayaz Ahmad Khan vs Union Territory Of J And K And on 26 February, 2026
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 28
Reg Cause List
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP 69/2025
FAYAZ AHMAD KHAN ... Petitioner(s)
Through: Ms. Mudasser Yousuf, Advocate
Vs.
UNION TERRITORY OF J AND K AND ...Respondent(s)
ORS.
Through: Mr. Mohsin Qadri, Sr. AAG with
Ms. Maha Majid, AC
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
26.02.2026
1. Petitioner in the instant petition filed under Article 226 of the
Constitution has sought quashing of detention order No. DIVCOM-
K/23/2025 dated 24.02.2025 (for short “the impugned order”)
passed by respondent No. 2- Divisional Commissioner, Kashmir
(for short “the Detaining Authority”) under and in terms of Section
3 of the Prevention of Illicit Traffic In Narcotic Drugs and
Psychotropic Substances Act, 1988.
2. The petitioner has challenged the impugned order on multiple
grounds urged in the petition.
3. Reply affidavit to the petition has been filed opposing the petition,
inter alia, on the premise that the petitioner is a notorious drug
peddler of the area having developed contacts with drug operatives
and has been dealing and selling drugs among the youth of the area
and since the said drug trafficking activities of the petitioner were
found to be serious threat to the physical as well as mental health of
the people of the area, besides endangering the national economy
and social stability, the preventive detention of the petitioner was
ordered by the Detaining Authority, after receiving dossier and
other related material from the sponsoring agency.
It is further stated that the petitioner has been previously as
well involved in drug related activities and booked in FIR No.
59/2023 registered with Police Station Devsar under section 8, 15
and 29 of the NDPS Act and though the petitioner obtained bail
therein in the said FIR, yet thereafter the petitioner continued to
indulge in drug related activities discretely in order to avoid rigor of
law, necessitating the preventive detention of the petitioner.
It is further stated that upon ordering the preventive
detention of the petitioner by the Detaining Authority based upon
the assessment of his activities, reports received from the field
agencies, inasmuch as, sufficiency and efficacy of bail conditions,
subject to which the petitioner was admitted to bail by the
competent court, the Detaining Authority ordered preventive
detention of the petitioner and in the process completed all statutory
formalities and safeguarded constitutional guarantees.
It is further stated that the contents of the order and the
grounds of detention were read over and explained to the petitioner
in the language he fully understood and was also informed about his
right of making a representation against his detention and that the
entire material based upon which his detention was ordered came to
be supplied to the petitioner by the Executing Officer and the
representation submitted by the petitioner before the Government
against his detention was rejected on 09.04.2025.
It is lastly stated that the grant of bail to the petitioner in
the FIR in question could not preclude the Detaining Authority from
detaining the petitioner under the preventive law as the petitioner
was found to be involved continuously in drug related activities.
Heard counsel for the parties and perused the record.
4. The counsel for the petitioner while making her submission in line
with the case setup in the petition would confine the challenge
thrown to the impugned order to the ground that the petitioner has
been detained by the Detaining Authority illegally on account of his
alleged involvement in FIR No. 59/2023, in which FIR the
petitioner stands already bailed out as the respondents did not
undertake any exercise to seek cancellation of the said bail, in the
event the petitioner was found continuously involved in drug related
activities after obtaining said bail.
Learned counsel would further submit that the respondents
have placed on record with the reply affidavit the detention papers
pertaining to a different person namely Ghulam Nabi Lone
signifying the non-application of mind on the part of the
respondents.
Learned counsel would further submit that the respondents
delayed the consideration of the representation submitted by the
petitioner which vitiates the impugned order and would lastly
contend that the lodgment of the petitioner under the preventive
detention has been ordered prior to the passing of the order of
detention, subsisting abuse of power and non-application of mind.
5. On the contrary the counsel for the respondents would submit that
the Detaining Authority while referring to the involvement of the
petitioner in FIR in question has only shown its awareness about the
involvement of the petitioner and his release on bail therein the said
FIR and that the petitioner came to be detained post grant of bail
owing to his continuous involvement in drug related activities in
order to prevent him from engaging drugs related activities.
Learned counsel would further submit that the grant of bail
to the petitioner in the criminal case per se would not in law operate
as a bar for preventive detetion of the petitioner.
Learned counsel would further submit that the lodgment
order referred in the petition and also the material annexed with the
reply affidavit filed to the petition of a different detenue has been
done under bona fide mistake as otherwise the entire material
referred to and relied upon in the grounds of detention for detaining
the petitioner stands furnished to the petitioner, having been
acknowledged by the petitioner.
6. Having regard to the aforesaid rival submissions of the learned
appearing counsel for the parties, it is deemed appropriate to refer to
the principle of law laid down by the Apex Court in case titled as
“Haradan Saha Vs. State of W.B reported in 1975 (3) SCC198
wherein at para 32 following has been laid down:-
“The power of preventive detention is qualitatively different
from punitive detention. The power of preventive detention is a
precautionary power exercised in reasonable anticipation. Itmay or may not relate to an offence. It is not a parallel
proceeding . It does not overlap with prosecution even it relies
on certain facts for which prosecution may be launched or may
have been launched. An order of preventive detention, may be
made before or during prosecution. An order of preventive
detention may be made with or without prosecution and in
anticipation or after discharge or even acquittal. The pendency
of prosecution is no bar to an order of preventive detention. An
order of preventive detention is also not a bar to prosecution.”
In view of the aforesaid position of law and having regard
to the aforesaid plea raised by the counsel for the petitioner, it can
safely be concluded, that the involvement of the petitioner in the
FIR in question wherein the petitioner has been admitted to bail
cannot be said to have operate as a bar for detaining the petitioner
under preventive detention. Besides Detaining Authority seemingly
has referred to the FIR in question as also the admission of the
petitioner to bail therein the said FIR in order to reveal its awareness
about the same.
7. Furthermore closer examination of the grounds of the detention
tends to show that the Detaining Authority has based its subjective
satisfaction for detaining the petitioner on the basis of the dossier
and the reports of discreet inquiry held qua the activities of the
petitioner relating to drugs and has based upon the same, ordered
preventive detention of the petitioner in terms of the order under
challenge. The plea of the petitioner that the Detaining Authority
could not have detained the petitioner under preventive law and
instead the respondents could have sought cancellation of bail
obtained by the petitioner in the FIR in question also pales into
significance in view of the position of law laid down by the Apex
Court in the judgment of Hardan Saha supra, wherein risking
repetition, it has been held that an order of preventive detention may
be made with or without prosecution or in anticipation or after
discharge or even acquittal.
8. Insofar as the annexing of the detention record of a different person
with the reply affidavit filed by the respondents to the petitioner is
concerned, the same admittedly is pertaining to one Ghulam Nabi
Lone, however, it cannot be said that the petitioner has been got
prejudiced by annexing of such material with the reply affidavit
filed by the respondents, because the perusal of the detention record
reveals that the petitioner has been furnished the detention material
upon its execution in lieu whereof the petitioner has affixed his
signature on the execution report as well thereby has rendered the
petitioner capable of making a representation which admittedly has
been made and considered by the respondents, as per the record
available and although, the delayed consideration of the said
representation is alleged yet no pleading in this regard has been
filed to show that the delay has been deliberate or intentional on the
part of the respondents in disposal of the said representation.
9. Insofar as the plea of the counsel for the petitioner qua the
lodgment of the petitioner prior to the passing of the detention order
is concerned, same appears to have a substance yet that per se
would not vitiate the impugned order and be fatal to the validity of
the impugned order.
10. Viewed thus for what has been observed, considered and analysed
hereinabove, no merit is found in the instant petition, which
accordingly is dismissed.
11. The detention record produced by the counsel for the respondents
in the open court is returned back.
(JAVED IQBAL WANI)
JUDGE
SRINAGAR:
26.02.2026
“S.Nuzhat”
Whether the order is speaking Yes/No
Whether the order is reporting Yes/No