Introduction:

In the case of Sarfaraz Ahmad vs. Union Territory of Jammu & Kashmir, the High Court of Jammu and Kashmir and Ladakh, presided over by Justice Sanjay Dhar, quashed the preventive detention of Sarfaraz Ahmad under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act). The Court emphasised the critical importance of adhering to procedural safeguards in preventive detention cases, particularly the timely consideration and communication of representations made by the detenu.

Arguments:

Petitioner’s Arguments:

Sarfaraz Ahmad, a resident of District Poonch, challenged his detention on several grounds:

• Lack of Compelling Reasons: He argued that there were no compelling reasons justifying his preventive detention, especially since he was already facing trial for the alleged offences.
• Non-Supply of Grounds and Materials: He contended that the authorities failed to provide him with the full grounds and materials supporting his detention, thereby hampering his ability to make a meaningful representation.
• Delay in Considering Representation: A representation submitted by his father on his behalf on 20.09.2024, received by the Home Department on 24.09.2024, was neither decided promptly nor communicated back to him.

Respondent’s Arguments:

The authorities defended the detention order by stating:

• Continued Illicit Activities: Despite being granted bail in two criminal cases, Sarfaraz Ahmad continued to engage in illicit drug trafficking, necessitating his preventive detention to prevent further offences.
• Failure of Ordinary Criminal Law: They asserted that ordinary criminal law had failed to deter him, making preventive detention under the PITNDPS Act necessary.

Court’s Judgment:

Justice Sanjay Dhar meticulously examined the records and found significant procedural lapses:

• Delay in Considering Representation: The Court noted that the representation submitted on behalf of Sarfaraz Ahmad was considered by the government after one and a half months of its receipt. This delay was deemed unacceptable and a violation of the detainee’s rights under Article 22 of the Constitution.
• Non-Communication of Rejection: The Court observed that there was no record indicating that the rejection of the representation was ever communicated to the detenu. The only documented communication was internal between the Home Department and the Divisional Commissioner.
• Violation of Statutory Duty: Under Section 3 of the PITNDPS Act, the detaining authority is obligated to provide the grounds of detention within five days (extendable to fifteen in exceptional cases) and to allow the detenu to make a representation as early as possible. The failure to adhere to these requirements rendered the detention order illegal.
• Citing Precedent: The Court referenced the Supreme Court’s decision in Sarabjeet Singh Mokha v. District Magistrate, Jabalpur [(2021) 20 SCC 98], emphasising that delays and failures in considering and communicating decisions on representations strike at the heart of constitutional safeguards under Article 22.

Conclusion:

The High Court quashed the detention order against Sarfaraz Ahmad, directing his release from custody if not required in any other case. This judgment underscores the judiciary’s role in ensuring that preventive detention is exercised within the bounds of constitutional and statutory safeguards, preventing arbitrary state action.