FAROOQ AHMAD WANI Vs. UNION TERRITORY OF J&K
LAWS(J&K)-2020-11-54
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 20,2020

Farooq Ahmad Wani Appellant
VERSUS
Union Territory Of JAndK Respondents

JUDGEMENT

ALI MOHAMMAD MAGREY - (1.)The preventive detention of the detenu, ordered by the respondent no.2 (Divisional Commissioner, Kashmir) in exercise of the powers vested in him under Section 3 of the J&K Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity "PITNDPS'), is the subject matter of challenge in this habeas corpus petition.
(2.)Before taking note of the grounds of challenge taken in this petition to assail the impugned order, it would be appropriate to give brief resume of the activities of the petitioner-detenu, which have led him to preventive detention. As is born out from the grounds of detention served on the detenu, he is a habitual indulgent in the trade of narcotics and psychotropic substances. The detenu was selling drugs to the young generation in Tangmarg area and thereby making the young people who are future of the nation as drug addicts. The detenu was involved in a case FIR No. 03/2020 u/s B/20 NDPS Act registered at Police Station Tangmarg. On 05.01.2019 during Naka by police concerned recovered from his possession "charas like substance" from the detenu. During the investigation, the detenu's involvement was established and charge sheet was produced before the competent court of law. The detenu was bailed out in the above mentioned FIR on the ground that a small quantity of 35 grams only were recovered from him therefore, the court has considered the bail application of the in terms of the law laid down in Code of Criminal Procedure. The detaining authority has passed the preventive detention order No. DIVCOM "K"/115/2020 dated 12.02.2020 against Farooq Ahmad Wani s/o Mohammad Hussain Wani R/o Druroo Tangmarg, which the detenu through his brother Seeks its quashment, with consequent prayer for release of the detenu forthwith on the following grounds:
"a) that no compelling reason or circumstance was disclosed in the order or grounds of detention to take the detenu in preventive detention, moreso in view of the fact that as on the date of passing of the aforesaid order of detention, the detenu was already in custody;

b) that the detenu has not been provided the material forming basis of the detention order, to make an effective representation against his detention order;

c) that the detaining authority has not prepared the grounds of detention by itself, which is a pre-requisite for him before passing any detention order.

d) that the detaining authority has not applied its mind while passing the detention order."

(3.)Notice was issued to respondents. They appeared through their learned counsel by virtual mode and filed counter affidavit as well by e-mail wherein they submitted that the detention order is well founded in fact and law and seeks dismissal of the Habeas Corpus Petition. The detention record received through e-mail, perused the same, copy retained on the file.
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