[PITNDPS Act] Accused Must Be Informed Grounds Of Detention Within 5 To 15 Days To Allow Prompt Representation: J&K High Court

Reiterating that procedural safeguards in preventive detention cases must be strictly observed, the High Court of Jammu and Kashmir and Ladakh has quashed the detention of one Sarfaraz Ahmed under the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (PITNDPS Act).A bench of Justice Sanjay Dhar underscored that it is “obligatory on the detaining authority to communicate to the detenu the grounds on which the order of detention has been made within a maximum period of five days, and in exceptional case within a period of 15 days, from the date of detention and to afford him the earliest opportunity of making representation against the order of detention.”Sarfaraz, a resident of District Poonch, was detained through an order passed by the Divisional Commissioner, Jammu, under the PITNDPS Act. The authorities claimed the detention was necessary to prevent him from engaging in illicit drug trafficking, asserting that even after being granted bail in two criminal cases, he continued such activities. They contended that ordinary criminal law had failed to deter him.Challenging the detention, the petitioner argued that there were no compelling reasons justifying preventive custody, especially since he was already facing trial. He also contended that the full grounds and material supporting the detention were not supplied to him, hampering his right to make a meaningful representation. Most significantly, he pointed out that 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.Justice Dhar, after examining the record and hearing both sides, zeroed in on the serious procedural lapses concerning the detenu's representation. While the detaining authority claimed in its affidavit that no representation was received, the official records of the Home Department showed otherwise. “.. In the present case, as already indicated above, the representation of the petitioner has been considered by the government after one and a half months of its receipt. This slackness on the part of respondents to take a decision on the representation of the detenu renders the impugned order of detention illegal”, the court remarked. Quoting the Supreme Court's decision in Sarabjeet Singh Mokha v. District Magistrate, Jabalpur [(2021) 20 SCC 98], Justice Dhar noted that such delays and failures strike at the heart of constitutional safeguards under Article 22. It observed, “By delaying its decision on the representation, the State Government deprived the detenu of the valuable right… The delay by the State Government in disposing of the representation and by the Central and State Governments in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu.”Applying these principles, the Court held that the delay in deciding the representation without any explanation and the failure to inform the detenu of its rejection violated both statutory and constitutional mandates.Violation of Statutory Duty Under PITNDPSJustice Dhar emphasized that Section 3 of the PITNDPS Act obligates the detaining authority 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 purpose of this requirement, the Court stated, is to give the detenu an effective chance to challenge the detention and prevent arbitrary state action.“Failure to decide the representation of a detenue within a reasonable time in an expeditious manner strikes at the valuable right of a detenu emanating from the provisions of Article 22 of the Constitution,” the Court ruled.Another crucial lapse noted was the absence of any record indicating that the rejection of the representation was ever conveyed to the detenu. The only documented communication was internal between the Home Department and the Divisional Commissioner. The Court observed that neither a report from the jail authorities nor any assertion from the respondents confirmed that this rejection was actually informed to Sarfaraz Ahmed.Citing Sarabjeet Singh Mokha again, the Court held that such failure to communicate the rejection in a time-bound manner is by itself sufficient to invalidate the detention order.“In view of the aforesaid position of law, the impugned order of detention cannot sustain in law because of the reason that respondents have failed to communicate the rejection of his representation to the detenu,” Justice Dhar concluded.Accordingly, the High Court quashed the detention order and directed that Sarfaraz Ahmed be released from custody, if not required in any other case. Case Title: Sarfaraz Ahmad Vs UT Of J&K Citation: 2025 LiveLaw (JKL) 196Click Here To Read/Download Judgment

[PITNDPS Act] Accused Must Be Informed Grounds Of Detention Within 5 To 15 Days To Allow Prompt Representation: J&K High Court

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