Fayaz Ahmad Khan vs Union Territory Of J And K And on 26 February, 2026

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    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

    SPONSORED

    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. It

    may 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
     



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