Jammu & Kashmir High Court – Srinagar Bench
Jaffer Hussain Sheikh vs Ut Of J&K Through on 21 May, 2026
Page |1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
HCP No. 300/2025
CM No.6170/2025
Reserved on: 18.05.2026
Pronounced on: 21.05.2026
Uploaded on: ____________
Whether the operative part or full
judgment is pronounced- Full
Jaffer Hussain Sheikh
S/O Ghulam Mohammad Sheikh
R/O Trehgam Kupwara.
...Petitioner(s)
Through: Adv. Zamir Abdullah.
Adv. Zahir Abdullah.
Vs.
1. UT of J&K through
Secretary Home Department,
Civil Secretariat Srinagar/Jammu.
2. Divisional Commissioner, Kashmir.
3. Sr. Superintendent of Police,
Kupwara.
...Respondent(s)
Through: Sr.AAG Mohsin S.Qadri, with
Adv. Haris Khan
CORAM: HON'BLE MR. JUSTICE M. A.CHOWDHARY, JUDGE
JUDGMENT
1. Through the instant petition filed under Article 226 of the
Constitution of India, the petitioner seeks quashment of Detention
Order No. DIVCOM “K”/204/2023 dated 27.12.2023 (for short
‘impugned order’) passed by respondent No.2-Divisional
Commissioner Kashmir, under the provisions of the Prevention of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
Page |2
1988 (for short, “PITNDPS Act“), whereby the detenue has been
placed under preventive detention.
2. The impugned detention order has been assailed and sought to
be quashed on the grounds that; the grounds of detention are
riddled with absolute imprecision, ambiguity and vagueness and
that the allegations mentioned therein have no nexus with the
detenue and have been fabricated by the Police in order to justify
its illegal action of detaining the detenue; that no reasonable and
prudent person can effectively make a representation against the
allegations or the detention order which is both unjustified and
egregiously unreasonable; that besides the fact that a certain
quantity of narcotics were seized from the possession of the
vehicle the detenue was travelling, which falls well below the
established commercial quantity, there is nothing else on record
that would point out that the detenue has any affiliation with
narcotics and drugs; that the respondents have failed to take into
consideration the fact that the detenue was already been lawfully
released on bail granted by the court of competent jurisdiction in
a case registered vide FIR No.32/2023 under sections 8, 20 and
29 of NDPS Act; that the detenue was released on bail on
03.05.2023 and the respondents have issued detention order on
27.12.2023 i.e., after seven months, and thus, the fundamental
concept of preventive detention is that it must be done urgently
without any unnecessary delay, which delay shall hold the entire
process as void and illegal.
3. The detaining authority-Divisional Commissioner Kashmir, in his
counter affidavit, has controverted that grounds of challenge put
Page |3
up on behalf of the petitioner, on the grounds that, the preventive
detention is designed to protect society and the fundamental
concept of preventive detention is that it is not intended to punish
someone for actions he had already taken, but rather to prevent
him from taking such actions in future; that the detention order is
based on a reasonable prediction of future behavior, considering
the detainee’s past conduct in light of the surrounding
circumstances; that the detenue has transformed into a notorious
illicit drug peddler, becoming the principal dealer of narcotic
drugs and psychotropic substances in the Kupwara area; that the
detenue is a hardcore drug peddler and is an active member of a
larger drug mafia that is relentlessly involved in drug trafficking,
not only in Kupwara but also in the surrounding areas; that the
contraband seized in FIR No.32/2023 was sent to the FSL for
verification, and the FSL confirmed that the same was ‘charas’;
that the detenue was granted bail in the said case but the bail
order stipulated that the detenue shall not indulge in such
activities while on bail; that the detenue continued to
clandestinely engage in the drug trade; that the continuous
activities of the detenue in peddling drugs and evading normal
law have made it imperative to detain the detenue under the
provisions of PITNDPS Act.
4. Learned counsel for the petitioner, while reiterating the grounds
urged in the petition, argued that despite the detention order
having been passed on 27.12.2023, was executed on
02.09.2025, i.e., after an unexplained and inordinate delay of
more than one year and eight months; that such abnormal delay
Page |4
has snapped the live and proximate link between the alleged
prejudicial activities of the detenue and the purpose sought to be
achieved by preventive detention; that once the petitioner had
already been enlarged on bail in the substantive criminal case,
the respondents could not resort to preventive detention, in a
routine manner, without demonstrating compelling necessity.
5. Learned Counsel appearing for the respondents, ex adverso,
submits that the detention order has been validly passed in
accordance with law with a view to prevent the petitioner from
indulging in illicit trafficking in narcotic drugs and psychotropic
substances; that the activities of the detenue were prejudicial to
public order and health of Society and, therefore, warranted
preventive detention; that the fundamental concept of preventive
detention is that it is not intended to punish someone for his/her
previous activities rather to prevent him from taking such actions
in future; that the basis for detention rests on the Executive’s
satisfaction with a reasonable probability or likelihood of the
petitioner from committing any of the acts within the meaning of
Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act,
1988.
6. Heard learned counsel for the parties, perused the detention
record and considered the same.
7. The facts, as projected in the petition, are that a case was
registered vide FIR No. 32/2023 against the petitioner/detenue
for the commission of offence under Sections 8/20 of the NDPS
Act on the allegations of recovery of 300 grams of charas-like
substance from his possession; that the petitioner was arrested
Page |5
in connection with the aforesaid FIR and subsequently came to
be released on bail by the competent court; that thereafter the
impugned detention order dated 27.12.2023 came to be passed
against the petitioner; that the same, however, was not executed
upon the petitioner for a considerable length of time; that during
the interregnum, the petitioner filed HCP No. 09/2024 before this
Court, wherein this Court vide order dated 12.01.2024 directed
the respondents not to detain the petitioner pursuant to the
impugned order; that the said petition was later dismissed as
withdrawn, inasmuch as the detention order had not been
executed till then. The petitioner was detained finally on
02.09.2025, in execution of the detention order.
8. Preventive detention, though constitutionally permissible, is an
exception to the cherished right of personal liberty guaranteed
under Article 21 of the Constitution of India. The law relating to
preventive detention has to be strictly construed, for such
detention is not punitive but preventive in nature. The Hon’ble
Supreme Court in Ramesh Yadav v. District Magistrate, Etah,
reported as (1985) 4 SCC 232, observed that merely because an
accused in a criminal case has secured or is likely to secure bail
is no ground to pass an order of preventive detention so as to
circumvent the same. The Court held as under:-
“Ordinarily, a detention order should not
be passed merely to pre-empt or
circumvent enlargement on bail in cases
which are essentially criminal in nature
and can be dealt with under the ordinary
law.”
Page |6
9. The object of preventive detention is not to punish a person for
past conduct but to prevent him from indulging in activities
prejudicial to the maintenance of public order or activities falling
within the scope of the preventive detention statute. It is well
settled that there must exist a live and proximate link between the
prejudicial activities attributed to the detenue and the purpose of
detention. If there is undue and unexplained delay either in
passing or executing the detention order, such delay vitiates the
detention as the nexus between the grounds of detention and the
object sought to be achieved gets snapped. Reference in this
regard may be made to T.A. Abdul Rahman v. State of Kerala
reported as (1989) 4 SCC 741 and P.U. Iqbal v. Union of India
reported as (1992) 1 SCC 434.
10. In T.A. Abdul Rahman case, the Hon’ble Supreme Court held:
“The question whether the prejudicial
activities of a person necessitating to pass
an order of detention is proximate to the
time when the order is made or the live-link
between the prejudicial activities and the
purpose of detention is snapped depends
on the facts and circumstances of each
case.”
The Court further observed:
“If there is undue and long delay between
the prejudicial activities and the passing of
the detention order, the court has to
scrutinize whether the subjective
satisfaction of the detaining authority was
genuinely arrived at.”
11. In the present case, the detention order came to be passed on
27.12.2023. Admittedly, the same was executed only on
02.09.2025. Thus, there is a delay of more than one year and
eight months in execution of the detention order. The
Page |7
respondents have failed to place on record any satisfactory
explanation justifying such enormous delay, except that in view of
restraint order passed by this Court, in earlier petition HCP
No.09/2024 vide order dated 12.01.2024.
12. From the record, it clearly emerges that during the aforesaid
period, the petitioner had approached this Court by filing HCP
No. 09/2024 and this Court had directed the respondents not to
detain the petitioner pursuant to the impugned order. However,
the said petition was subsequently dismissed as withdrawn on
16.04.2025 owing to non-execution of the detention order. Even
thereafter, the respondents took considerable time in executing
the order on 02.09.2025, after a period of four and a half months.
13. The unexplained delay in execution of the detention order
assumes significance because preventive detention is based
upon the subjective satisfaction of the detaining authority that
immediate detention of a person concerned is necessary to
prevent him from acting in a prejudicial manner. If the
respondents themselves sleep over the matter and fail to execute
the detention order for such a long duration, the very basis of
subjective satisfaction becomes doubtful. In Sk. Serajul v. State
of West Bengal reported as (1975) 2 SCC 78, the Hon’ble
Supreme Court held that undue and unreasonable delay in
securing arrest of the detenue throws considerable doubt on the
genuineness of the subjective satisfaction of the detaining
authority. Further, the petitioner had already been enlarged on
bail in FIR No. 32/2023 registered under Sections 8/20 of the
NDPS Act. The ordinary criminal law was, thus, already set into
Page |8
motion against him. In such circumstances, resort to preventive
detention required strict adherence to constitutional safeguards
and prompt execution of the detention order, which is
conspicuously absent in the present case.
14. The Apex Court in Rekha v. State of Tamil Nadu reported as
(2011) 5 SCC 244, cautioned that preventive detention is a
serious encroachment on personal liberty and cannot be invoked
when ordinary criminal law is sufficient to deal with the situation.
The Court held that:-
“Preventive detention is, by nature,
repugnant to democratic ideas and an
anathema to the rule of law… No doubt
Article 22(3)(b) permits preventive
detention, but it is an exception to Article
21 and therefore must be construed
strictly.”
The Court also held that:
“The liberty of a citizen is a most important
right won by our forefathers after long,
historical, arduous struggles.”
15. The Apex Court has consistently held that unexplained delay in
execution of a detention order is fatal to the detention, as it
destroys the live link between the alleged prejudicial activities
and the necessity of detention. Reference may also be made to
SMF Sultan Abdul Kader v. Joint Secretary to Government of
India reported as (1998) 8 SCC 343.
16. It is trite that preventive detention laws, being exceptional in
nature, have to be construed strictly and every procedural
safeguard provided under law must be zealously enforced. The
constitutional courts are duty-bound to ensure that personal
liberty is not sacrificed at the altar of administrative convenience.
Page |9
17. Having regard to the afore-stated reasons, the discussion made
herein-above and the facts and circumstances of the case, this
Court is of the considered opinion that the inordinate and
unexplained delay in execution of the impugned detention order
has vitiated the order of detention and rendered the continued
detention of the petitioner unsustainable in law.
18. Accordingly, the petition is allowed and Detention Order No.
DIVCOM “K”/204/2023 dated 27.12.2023, passed by respondent
No.2-Divisional Commissioner Kashmir under the PITNDPS Act,
is quashed. The respondents are directed to release the
petitioner forthwith from preventive custody, provided he is not
required in connection with any other case(s).
19. Disposed of along with pending application(s).
20. Scanned detention record, as produced by learned counsel for
the respondents, is directed to be returned back to him.
( M. A. CHOWDHARY )
JUDGE
Srinagar
21.05.2026
Muzammil. Q
Whether the order is reportable: Yes / No
