Amir Ali Bhat vs Union Territory Of J&K & Ors on 13 April, 2023

[Cites 29, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Amir Ali Bhat vs Union Territory Of J&K & Ors on 13 April, 2023

01. By way of the present petition, the detenu, through his wife, seeks quashment of Order No.DMS/PSA/135/2022 dated.03.10.2022 passed by District Magistrate, Srinagar in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, whereby detenu, namely, Amir Ali Bhat alias Kancha S/o Ali Mohammad Bhat R/o Boatman Colony Bemina, Srinagar, has been placed under preventive detention with a view to prevent him from indulging in the activities which are prejudicial to the maintenance of Public order.

02. The specific case of the petitioner is that the impugned order has been passed by the Detaining Authority on the basis of material supplied by Senior Superintendent of Police, Srinagar vide his Communication No. LGL/Det- PSA/2022/20974-77 dated 28.09.2022 and the detenu was engaged in his business of selling the shoes and other commodities to earn his lively hood, who 2 had no dispute with any person but non-payment of demanded money to the police official, has become the sole reason for his detention by way of impugned order.

03. Further specific case of the petitioner is that the detenu is the resident of the Boatman Colony Bemina Srinagar which is adjacent to the Sub District Magistrate Office bye-pass Bemina, which has remained disturbed in the present ongoing turmoil and the petitioner as well as detenu belong to a very poor family, who have three small children and are dependent upon the earnings of the detenu, who has been detained under impugned order.

04. It is the specific stand taken by the petitioner that when the newly constructed house of the detenu was damaged badly, the detenu resisted the aggression of the Security forces and Police, who entered the house of the detenu and damaged the property and thrashed the inmates of the house including the detenu and took him along with them in police vehicle. It is further stand of the petitioner that the family members of the detenu went to the police station to clear their position but the police did not agree to release him and after few days, the petitioner was told that in case the petitioner wants the detenu to be released without implicating him in any case, detenu or his family shall deposit rupees one lac in cash and in case, the cash is not paid, the detenu will be booked in FIR with heinous charges and the petitioner being poor person could not pay the demanded amount.

05. The case of the petitioner is that the detenu was taken forcefully and booked in F.I.R No. 23 of 2022 in Police Station Bemina Srinagar for the offences under Sections 457 & 380 IPC and kept in the Police Custody till 01.10.2022 and thereafter on 03.10.2022, the detenu was booked under the 3 provision of the Public Safety Act and directed to be lodged in Kote Bhalwal, Jail, Jammu. Further case of the petitioner is that on 03.09.2022, the detenu applied for the bail before the court of competent jurisdiction in which report was sought by Court and pursuant to the directions of the Court, the police filed the report and on 01.10.2022, the detenu was granted bail by the Court in FIR No. 23/2022, which was served upon the S.H.O., concerned and the detenu was released from the custody on 01.10.2022 and thereafter again the detenu was taken into custody after two days under the impugned order. ARGUMENTS ON BEHALF OF THE DETENU

06. Mr. S. H. Thakur, learned counsel appearing on behalf of the detenu submits that the order of detention had been passed against the young budding business man, who has never been arrested in connection with any offence nor there was any complaint against him till date as has been alleged by the respondents in FIR No. 23/2022. The detenu has unblemished career to his credit and had never been arrested in connection with commission of any offence. It was only on 17.09.2022, when the police and the Para Military (CRPF) followed the stone pelter and they started breaking the glasses of the locals in the colony including the newly constructed house of the detenu, which was resisted by the detenu as the detenu and his family had no role to play in the violence and secondly, the family of the detenu refused to pay the demanded amount of the money in the police station which became sole reason for implicating the detenu in the aforesaid FIR on the basis of which, the detenu has been booked under the provisions of the Public Safety Act which is patent violation of the law and misuse of the power vested into the respondents by operation of the law under the provisions of the Public Safety Act. 4

07. Learned counsel for the detenu further submits that detenu had been booked initially in various offences including the non-bailable offences which carry the sufficient punishment and other offences for which special punishment is prescribed under law. The detenu is not habitual offender in the liquor, narcotics, timber smuggling. Learned counsel appearing on behalf of the detenu has vehemently argued that after the close examination of the police report filed against the bail application, police dossier and the grounds of the detention, all the same are verbatim of each other and the detaining authority had not applied its mind and had not gone a centimeter beyond the police report which was sufficient to indicate that the impugned order, is not the preventive in nature but is punitive in character. Learned counsel further argued that the respondents were sure enough that in case the detenu has been put on the trial before the Court for the substantive offences leveled against him, the respondents will fail to establish the charges against the detenu, as such, by way of short cut method, the respondents have resorted to the provisions of the preventive detention.

08. Learned counsel for the detenu has further argued that the detaining authority had not applied his mind to the case of the detenu nor the detaining authority has quoted the allegation leveled against the detenu in the order of detention and the grounds of detention are vague and irrelevant beside being the replica of the police report and police dossier, as such, the impugned order lacks the proper application of mind on part of the detaining authority. Learned counsel has vehemently argued that the detenu was taken in custody on 17.09.2022, who applied for bail before the competent jurisdiction and in the bail application, report was sought from the police station concerned and the 5 Public Prosecutor was asked to file objections and subsequently, the bail was granted to the detenu.

09. The specific stand taken by the petitioner that the detenu is young boy of 23 years, who is doing his regular family business to earn the livelihood for his person and his family and even if at all the detenu has committed an offence as was alleged by the respondents, the detenu has been booked under the traditional criminal law where the detenu has to be put on trial and his guilt was to be established by leading the evidence which is not available with the respondents as detenu had never committed any offence as was alleged by the respondents. Thus, impugned order has been passed for a wrong purpose just to keep the detenu behind the bars. The learned counsel prays that this Court is well within its rights to interfere with the impugned order as the order impugned had not been confirmed within the stipulated time by the respondents and authorities under section 8 (4) of the Public Safety Act.

10. Learned counsel appearing on behalf of the detenu has stated that the impugned order of detention has been passed by the detaining authority on 03.10.2022 and as per the provisions of the Public Safety Act, said order was to be confirmed within the period of (12) days by the Government and in case the order was not confirmed by the Government, the same can be interfered at pre execution stage by the Court. Learned counsel appearing on behalf of the detenu has further stated that the police dossier and report was submitted by the police against the bail application moved by the detenu, when the detenu was under

arrest in the police station in FIR No.23/2022 at P/S Bemina Srinagar from 17.09.2022 to 01.10.2022. The allegations leveled are one and the same against the detenu in all the three documents and this was the only material available 6 with the respondents for invoking the provisions of the Public Safety Act and under these circumstances, when the grounds of the detention and the police report are the verbatim of each other and when the detenu is already on the bail, this Court can interfere with the impugned order at the pre execution stage.

11. The learned counsel for the detenu further submits that Article 21 of the Constitution prescribers in express terms that the State shall not deny the right to life and liberty to any person except in accordance with the procedure established by the law and a set procedure is prescribed in the Article 22 of the Constitution of India and the Jammu and Kashmir Public Safety Act which had not been followed by the respondents in the present case while passing the impugned order and very passing of the impugned order is not recognized by the procedure established by law. He further submits that the detenu has not been provided the material pertaining to his arrest for preferring a representation against the order of detention before the detaining authority and Advisory Board, even though some order has been passed but no material has been provided by the respondents to make an effective representation but neither the detaining authority nor the Government had considered the grievances by the detenu, nor they have communicated back to the detenu as to what decision had been taken by the government/ detaining authority with regard to his grievances which was not only the statutory duty of authorities towards the detenu but a constitutional obligation as well to validate the order of the detention. The procedure prescribed under the Constitution and under the statutory law had been observed in breach in issuing the impugned order.

12. Lastly, learned counsel appearing on behalf of the detenu submits that the detaining authority has to derive the subjective satisfaction before passing 7 the order impugned under the preventive detention laws and the subjective satisfaction was to be derived from the material placed before the detaining authority and from the perusal of the grounds of the detention, it is very clear that the detaining authority has relied upon the vague incidents which lack the specification and which have not been defined by the forwarding agencies which is the requirement under the law. Learned counsel further submits that a detenu under the provisions of the Public Safety Act must know as to under what charges, he is being taken under preventive detention and since the order impugned has been passed on these vague allegation, thus, the detaining authority has not recorded the subjective satisfaction as is required under the law of preventive detention, as such, he seeks quashment of the order impugned.

ARGUMENTS ON BEHALF OF THE RESPONDENTS

13. Per contra, Mr. Sajjad Ashraf, learned Government Advocate appearing on behalf of the respondents, submits that the purpose of the preventive detention is detaining a person and not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the Executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The counsel further pointed out that a criminal conviction, on the other hand, is for an act already done, which can only be possible by a trial and legal evidence and there is no parallel between prosecution in a Court of law and a detention order under the Act.

14. Learned Government Advocate further submits that the detenu came to be detained under the provisions of the Act of 1978 validly and legally by virtue of detention order bearing No. DMS/PSA/135/2022 dated 03.10.2022 8 issued by District Magistrate Srinagar and at that time, all statutory requirements and Constitutional guarantees have been fulfilled and complied with by the Detaining Authority, indisputably keeping in mind the very object of law of preventive detention being not punitive, but only preventive. It is settled law that in the case of preventive detention, no offence is to be proved nor is any charge formulated. He further submits that the Detaining Authority has passed order of detention after deriving subjective satisfaction in the matter. The grounds of detention, order of detention, as well as entire material relied upon by the detaining authority came to be furnished to the detenu well within statutory period provided under Section 13 of the Act.

15. Learned Government Advocate has vehemently argued that in compliance to District Magistrate‟s detention order, the warrant was accordingly executed by Executing Officer namely, ASI Mohd Shafi No.107/AWP EXK- 922305 of P/S Bemina and detenu was handed over to Superintendent Central Jail Kote Bhalwal Jammu for lodgment. The contents of the detention order/warrant and the grounds of detention were read over and explained to the detenu in the language which he fully understood and in lieu whereof, the detenu subscribed his signatures on the execution report/order and the detenu was also well informed about his right of making of representation to the detaining authority or to Government against his detention and he despite having received the aforesaid entire material has not chosen to make any representation against his detention.

16. Learned Government Advocate appearing on behalf of the respondents has further argued that the detenu was initially ordered to be lodged in Central Jail Kote Bhalwal Jammu by the Detaining Authority where the 9 detenu was handed over the order of detention, grounds of detention and all other material relied upon by the authority while detaining the detenu and the said order was approved and thereafter confirmed by the Government. As per the stand of the respondents, they have complied all statutory, Constitutional provisions and followed all requisite formalities and have not violated any of them, thus, the order in question has been issued validly and legally issued. Learned counsel has further argued that right of personal liberty is most precious right, guaranteed under the Constitution and it has been held to be transcendental, inalienable and available to a person independent of the Constitution.

17. He further argued that a person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India, (1978 AIR SC

597), is to be just and fair. The personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object are to save society from 10 activities that are likely to deprive a large number of people of their right to life and personal liberty. In the case in hand, it would be dangerous for the people at large, to wait and watch as by the time ordinary law was set into motion, the person, having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property.

18. Learned Government Advocate has vehemently argued that detention of the detenu has been passed under the provisions of Public Safety Act and the said order was issued with application of mind as the grounds of detention are sufficiently connected with the activities of detenu which are highly prejudicial to the maintenance of security. Learned Government Advocate has further argued that the detenu has a criminal bent of mind which was evident from his conduct over a period of time and had been found indulging in anti-national /nefarious activities in order to disturb the public peace and order, prejudicial to the maintenance of public order, for which sufficient material was received to detain the detenu under J&K PSA 1978 and the detention of the detenu was ordered with due application of mind, as the activities of the detenu were prejudicial to the maintenance of public order.

19. Lastly, he argued that in compliance to District Magistrate‟s detention order, the warrant was accordingly executed by Executing Officer namely, ASI Mohd Shafi No.107/AWP EXK-922305 of P/S Bemina and detenu was handed over to Superintendent Central Jail Kote Bhalwal Jammu for lodgment and the contents of the detention order/warrant and the grounds of detention were read over and explained to the detenu in the language which he fully understood and the detenu subscribed his signatures on the Execution report/order and the 11 detenu was also well informed about his right of making of representation to the Detaining Authority.

LEGAL ANALYSIS

20. Heard learned counsel for the parties at length and perused the record which has been supplied to this Court by learned Government Advocate appearing on behalf of the respondents. Perusal whereof, reveals that the grounds of detention are replica of the dossier with interplay of some words here and there. It shows the total non-application of mind on the part of the detaining authority. While formulating the grounds of detention, it was incumbent upon the Detaining Authority to have applied its mind independently with a view to arrive at subjective satisfaction and the Detaining Authority by no stretch of imagination can reiterate in the grounds of detention whatever is written in the dossier. I am fortified by the view of the Hon‟ble Supreme Court in case titled Jai Singh & ors. vs. State of J&K, reported as (AIR 1985 SC 764), which is reproduced as under:-

"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of ...... Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious 12 matter and is not to be trifled with in this casual, indifferent and routine manner."

21. From the perusal of the law laid down by the Hon‟ble Supreme Court in the aforesaid case coupled with the perusal of the facts of the present case, it is empathetically clear that the grounds of detention and the dossier is similar which proves total non-application of mind on the part of the Detaining Authority and the Detaining Authority has not applied its mind before arriving at subjective satisfaction to detain the detenu.

22. The question which arises for consideration in the present case is „whether non supply of the dossier and other relevant material to the detenu vitiates the detention order and renders the same bad in the eye of law‟.

23. Perusal of report of Executing Officer reveals that it bears the signatures of the detenu and as per the report, the detenu has received the copy of the detention (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (nil), copies of FIR, statement of witnesses and other related relevant documents (01 leaves) Total 05 leaves.

24. One of the key gaps in the detenu‟s incarceration is the non supply of the dossier. Thus, from the bare perusal of the execution report which form part of the detention record makes it abundantly clear that the copy of the police dossier has not been supplied to the detenu. The record further reveals that though the detenu has been provided copy of FIR No. 23/2022 but executing report does not reveal whether the statement of witnesses recorded during investigation of the said FIR and the material on the basis of which the detenu‟s alleged involvement in the said FIR has been provided or not. Thus, the 13 contention of the detenu that the whole material which has been replied upon by the Detaining Authority while framing the grounds of detention has not been supplied to him appears to be well founded. The in action on the part of the respondents to provide the whole material and also the dossier has denied the detenu a right to make an effective representation against his detention order which has confirmed by the Advisory Board, subsequently. It can safely be concluded in the instant case that the failure on the part of the Detaining Authority to supply the material relied upon at the time of passing the detention order against the detenu renders the detention order illegal and un-sustainable in the eye of law.

25. I am fortified by the view laid down by this Court and the Hon‟ble Supreme Court in the following cases:-

"This Court in Gulzar Ahmad Sheikh Vs. Union Territory of J&K and anr., WP(Crl) No.139/2021 decided on 21.05.2022, has held as under:-

"Respondents have, therefore, failed to supply the dossier, FIR and other record of the case, based whereupon the order of detention had been passed to detain the detenue. The detenue has thus, been prevented from making an effective and meaningful representation in accordance with law and his rights under Article 22 of the Constitution of India, again lending substance to the challenge to the detention order."

So far as the contours of this requirement and sufficient compliance thereof is concerned, reliance can be placed on the judgment of the Supreme Court reported as AIR 1999 SC 3051 Sophia Gulam Mohd. Bham, vs. State of Maharashtra'. Paras 12, 13, and 14 of the same read as under:

"The detenu was thus informed that he has a right not only to make a representation to the Detaining Authority against the order of detention but also to the State Government and the Central Government.

Now, an effective representation can be made against the order of detention only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion that the detention of Bham Faisal Gulam Mohammed was necessary, were supplied to him. It is only when he has looked into those documents, read and understood their contents that it can be said that the detenu can make an effective representation to the Detaining Authority, State or Central Government, as laid down in Article 22 (5) of the Constitution which provides as under:

"When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

The above will show that when a person is detained in pursuance of an order made for preventive detention, he has to be provided the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that order. Both the requirements have to be complied with by the authorities making the order of detention. These are the rights guaranteed to the person detained by this clause of Article 22 and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words "as soon as may be" indicate a positive action on the part of the Detaining Authority in supplying the grounds of detention. There should not be any delay in supplying the grounds on which the order of 15 detention was based to the detenu. The use of the words "earliest opportunity" also carries the same philosophy that there should not be any delay in affording an adequate opportunity to the detenu of making a representation against the order of detention. The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language." In view of the above legal position, as stated above and in particular having regard to the fact that an order of preventive detention against a person passed at a time when that person is already in the custody of the Authorities for commission of an act under substantive law, is illegal unless there is possibility of immediate release of the person from custody in the substantive offence and there are compelling reasons for passing of the order of preventive detention. Such a situation is required to be reflected in the order of detention or the grounds of detention formulated by the detaining authority. Non-furnishing of the whole material, on which the detention order has been based, to the detenue has also made him disabled to make an effective and meaningful representation against the detention order, vitiates the same which is not sustainable. The impugned order is, therefore, liable to be quashed on these counts alone."

The Co-ordinate Bench of High Court of Jammu & Kashmir and Ladakh in Khalid Nazir Wagay vs. Union 16 Territory of J&K & ors. WP(Crl) 132/2022 decided on 09.02.2023 has observed as under:

"Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well- founded. Rather the record produced by the respondents corroborates the fact that whole of the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenue. Obviously, the petitioner has been hampered by non-supply of these vital documents in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law.

It needs no emphasis that the detenue cannot be expected to make an effective and purposeful representation which is his constitutional right guaranteed under Article 22(5) of the Constitution of India, unless and until the material, on which the detention is based, is supplied to the detenue. The failure on the part of detaining authority to supply the material renders the detention order illegal and unsustainable.

In Thahira Haris & ors vs. Govt. Of Karnataka & ors.

reported as (2009) 11 SCC 438, the Hon‟ble Supreme Court has held as under:

"More than half a century ago, the Constitution Bench of this Court has interpreted Article 22(5) of the Constitution in Dr. Ram Krishan Bhardwaj v. The State of Delhi and Ors. 1953 SCR 708 observed as under:

".......Preventive detention is a serious invasion of personal liberty and such meagre safeguards as the Constitution has provided against the improper exercise of the power must be 17 jealously watched and enforced by the Court. In this case, the petitioner has the right, under article 22(5), as interpreted by this Court by majority, to be furnished with particulars of the grounds of his detention "sufficient to enable him to make a representation which on being considered may give relief to him." We are of opinion that this constitutional requirement must be satisfied with respect to each of the grounds communicated to the person detained, subject of course to a claim of privilege under clause (6) of article 22. That not having been done in regard to the ground mentioned in sub- paragraph (e) of paragraph 2 of the statement of grounds, the petitioner's detention cannot be held to be in accordance with the procedure established by law within the meaning of article

21. The petitioner is therefore entitled to be released and we accordingly direct him to be set at liberty forthwith."

The right which the detenu enjoys under Article 22(5) is of immense importance. In order to properly comprehend the submissions of the detenu, Article 22(5) is reproduced as under:

"22(5). When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."

This Article of the Constitution can be broadly classified into two categories:(i) the grounds on which the detention order is passed must be communicated to the detenu as expeditiously as possible and

(ii) proper opportunity of making representation against the detention order be provided."

26. Perusal of the detention record further reveals that the concerned, who has executed the document, has not sworn an affidavit in that behalf and as such, procedural requirement as envisaged under law has not been followed by the respondents. The Hon‟ble Supreme Court in Abdul latif Wahab Sheikh Vs. B. K. Jha & anr., reported in 1987 (2) SCC 22 has made it clear that it is only the 18 procedural requirements, which are the only safeguards available to detenu, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority. In the present case, the procedural requirement, as discussed and noted above, have not been followed and complied with by respondents in letter and spirit and as a corollary thereof, petition is required to be allowed.

27. Another legal question which arises for consideration in the present case is "Whether the concepts of "public order" and "security of state" are distinct and separate and whether they can be used interchangeably?"

"It is worthwhile to mention that, while perusing the grounds of detention prepared by D.M, Srinagar, on the basis of dossier submitted by the District Police, Srinagar, in Para:3, it is reflected that the activities of the detenu leads to the disturbance of the public order/Social order.

However, in the Para 8, of the grounds of detention it states:

"Whereas, looking at situation from a broader perspective, it appears that under well- knit conspiracy, you and your other associates are intentionally resorting to such activities which are prejudicial to maintenance of public order as well as security of U.T. of J&K".

With a view to appreciate the aforesaid legal proposition, it would be apt to reproduce the provisions of Public Safety Act which provides as under :

8. Detention of certain persons. -- (1) The Government may--

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-

(i) the security of the State or the maintenance of the public order; or 19

(ii) [Omitted.] (a-1) if satisfied with respect to any person that with a view to preventing him from-

       (i)     smuggling [timber or liquor]; or
       (ii)    abetting the smuggling of [timber or liquor]; or

(iii) engaging in transporting or concealing or keeping smuggled timber; or

(iv) dealing the smuggled timber otherwise than by engaging in transporting or concealing or keeping in smuggled timber [or liquor]; or

(v) harbouring persons engaged in smuggling of timber [or liquor] or abetting the smuggling of timber 3[or liquor]; or]

(b) if satisfied with respect of such person who is--

(i) a foreigner within the meaning of the Foreigners Act,

(ii) a person residing in the area of the State under the occupation of Pakistan, that with a view to regulating his continued presence in the State or with a view to making arrangements for his expulsion from the State, it is necessary so to do, make an order directing that such person be detained. (2) Any of the following officers, namely:--

(i) Divisional Commissioners,

(ii) District Magistrate, may, if satisfied as provided in sub-clauses (i) and (ii) of clause [(a) or (a-1) of sub-section (1), exercise the powers conferred by the said sub- section.

(3) For the purposes of sub-section (1), --

[(a) Omitted.]

(b) "acting in any manner prejudicial to the maintenance of public order" means--

(i) promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region;

(ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, 20 inciting, provoking or abetting, disturbs or is likely to disturb public order;

(iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;

(iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offences disturbs, or is likely to disturb public order;

[(c)"smuggling" in relation to timber means possessing or carrying of illicit timber and includes any act which will render the timber liable to confiscation under Forest Act, Samvat 1987 or under the Jammu and Kashmir Excise Act, 1958, as the case may be;] [(d)"timber" means timber of Fir, Kail, Chir or Deodar tree whether in logs or cut up in pieces but does not include firewood;] [(e) "Liquor" includes all alcoholic beverages including beer;] [(f) "person" shall not include a citizen of India who has not attained the age of eighteen years for being detained under clauses (a) and (a-1) thereof].

(4) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government.

28. The abovementioned position was recently reiterated by a coordinate bench of the High Court of Jammu & Kashmir and Ladakh. In the case titled Javid Ahmad Mir V UT of J&K and Anr. WP (Crl) No. 151 of 2021, decided on 28.04.2022, it was held that:

"In the present case, detaining authority has made use of both expressions "prejudicial to maintenance of public order" as well as "prejudicial to security of the State". Impugned detention order, made on the basis of grounds of detention using both expressions by the detaining authority to place the detenu under preventive detention, in view of above discussion and well settled law, is held illegal and consequently impugned order is vitiated."

29. In Dr. Ram Manohar Lohia Vs. State of Bihar and Ors., reported in AIR 1966 SC 740, the Hon‟ble Supreme Court has held as under:

"61. Reliance is first placed upon a decision of the Federal Court in Lakhi Narayan Das v. Province of Bihar [1949] F.C.R. 693, where the Court dealing with item 1 of Provincial List, 7th Schedule in the Government of India Act, 1935 which read-

"Public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power)"

observed that "Public Order" with which that item began was "a most comprehensive term". Reference is also made to Ramesh Thapar v. State of Madras[1950] S.C.R. 594 where this Court dealing with the same subject matter also observed:

"............'Public order' is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established it must be taken that 'public safety' is used as a part of the wider concept of public order and referring to Entry 3 in List III (Concurrent List) of the 7th Schedule of the Constitution which includes the "security of a State" and "maintenance of public order" as distinct topics of legislation, 22 observed -in the field of public order or tranquillity, marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder -which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were- differences in kind."-

30. As has been said by the Hon‟ble Supreme Court in G. M. Shah vs. State of J&K reported as AIR 1980 SC 494, the expressions "law and order", "Public order" and "security of the State" are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the "security of the State".

31. In Mallada K. Sri Ram v. the State of Telangana & ors., reported in 2022 SCC online SC 424, the Hon‟ble Apex Court has considered the distinction between "law and order" and "public order" and observed as under:-

"The distinction between a disturbance to law and order and a disturbance to public order has been clearly settled by a Constitution Bench in Ram Manohar Lohia v. State of Bihar. The Court has held that every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large. The Constitution Bench held:

"We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order" take in every kind of disorders or only some of them? The answer to this serves to distinguish. "Public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the 23 peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not Public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder. Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules....."

„A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order". In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards 24 against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of, preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law."

32. Thus, in the light of the aforesaid settled legal position and the facts of the present case, the detaining authority has used both the expressions mentioned supra in the grounds of detention with a wavering mind and uncertainty and accordingly, the impugned order gets vitiated and is held illegal.

33. The next question which arises for consideration in the instant case is "whether the detaining authority had applied its mind or not while passing the said detention order‟.

34. In the instant case, a bare perusal of execution reports clearly proves that the detenu was not provided copy of the dossier and as a consequence of which he was denied of making a valid representation against his detention thereby depriving him of a right that has been constitutionally guaranteed to him. The Detaining authority has not applied its mind while passing the detention order, as the detaining authority has reflected that the detenu is the threat to the maintenance of public/social order and in the same breath, respondents have observed that the detenu is a threat to the security of the Union Territory, which shows the wavering mind of the detaining authoirty. Two contradictory statements mentioned by the detaining authority in the grounds of detention clearly proves beyond any shadow of doubt that the detaining authority has not applied its mind before arriving at subjective satisfaction to 25 detain the detenu in light of the law laid down by the Hon‟ble Supreme Court in catena of judgments, where in it has been held that public order is different from the security of the state. Thus, it appears from the record that the detaining authority has not applied its mind and passed the order of detention in a casual manner which cannot sustain the test of law.

35. The next contention which has been raised by the detenu is that if at all the, detenu was involved in any illegal activity or any offence, as alleged in the grounds of detention by leveling vague allegations without any substantial proof, then the ordinarily criminal law was sufficient to deal with the same rendering it unnecessary and uncalled for to invoke Public Safety Act against the detenu. The offences which have been referred in the grounds of detention are vague allegations without any proof and even if the same are taken at its face value to be true, still the offence referred in the grounds of detention is directed against the individual and not against the society at large. The stray incidents which have been referred in the grounds of detention may create a problem for law and order but the same cannot be a case which can be said to have disturbed public order.

36. It is pertinent to submit that preventive detention is not a quick alternative to normal legal process as has been laid down by the Hon‟ble Supreme Court in V. Shantha v. State of Telangana & ors. reported in AIR 2017 SC 2625.

37. The Hon‟ble Supreme Court has held as under: -

"That preventive detention of a person by a State after branding him a 'goonda' merely because the normal legal process is in effective and time consuming in „curbing the evil he spreads‟, is illegal and that the detention of a person 26 is a serious matter affecting the liberty of the citizen. Preventive detention cannot be resorted to when sufficient remedies are available under general laws of the land for any omission or commission under such laws. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities, affecting security of the State, and that there was no other option except invoking the provisions of preventive detention Act as an extreme measure to insulate. No doubt the offences alleged to have been committed by detenu are such as would attract punishment under the prevailing laws but that has to be done under the said prevalent laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him from committing certain types of offences. But such detention cannot be made a substitute for ordinary law and absolve investigating authorities of their normal functions of investigating the crimes which the detenu may have committed. After all, preventive detention cannot be used as an instrument to keep a person in perpetual custody without trial."

38. The question that the grounds of detention is replica of dossier has been answered by the Coordinate Bench of this Court in Nazir Ahmad War Vs. UT of J&K and another WP (Crl) No.131/2021, decided on 28.04.2022.

"This Court in the case of Noor-ud-Din Shah v. State of J&K & Ors. 1989 SLJ 1, quashed the detention order as it was found that grounds of detention was reproduction of the dossier supplied to the detaining authority and held that it amounted to non-application of mind. The Court observed:

"I have thoroughly by examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of detention formulated by the latter for the detention of the detenu in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case, he has acted as an agent of the police. It was his legal duty to find out if the allegations levelled by the police against the detenu in the dossier were really going to affect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenu, so as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order in a routine manner being in different to the import of preventive 4 WP (Crl) no.131/2021 detention as or detained in the Act, passing of an order without application of mind goes to the root of its validity, and in that case, the question of going into the genuineness or otherwise of the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act."

From the above settled legal position, it is clear that if grounds of detention and dossier are similar in language, it would tantamount to non-application of mind on the part of detaining authority. As already noted, in the instant case, it is clear from the record that the dossier and the grounds of detention contain almost similar expressions which show that there has been non-application of mind on the part of the detaining authority. The impugned order of detention is, therefore, unsustainable in law on this ground alone.

39. In Icchu Devi Choraria vs Union of India reported as (1980) 4 SCC 531, the Hon‟ble Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied, copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningfully.

40. It appears from the record that Public Safety Act has been imposed against the detenu for the offence of burglary, theft and cheating which are traditional offences and can be dealt under the ordinary criminal law and cannot be a ground for which the respondents can invoke the provisions of Jammu and Kashmir Public Safety Act.

41. Another contention which has been raised by the detenu is that the order of detention has not been confirmed within the stipulated period of 12 days as required under section 8(4) of the Public Safety Act and consequently, the detention order has become illegal due to non confirmation within the stipulate period and this aspect of the matter has not been denied by the respondents as the specific stand has been taken by the detenu in ground (H) of the present petition. This Court in Sunil Kumar vs. State and anr. reported as 1992 SLJ 270, has held as under:-

"Last but not the least, ground taken by the learned counsel for the petitioners is that the impugned orders having been passed by District Magistrate were not subsequently "approved by the 29 government in terms of provisions of sub-section (4) of section 8 of the Act. Being devoid of any approval from the Government, the order out-lives its life after 12 days of its issuances. Mr. Sethi has referred to a judgment delivered by this Court in Heabus Corpus - Petition No. 128/91 reported in Crimes 1992 part-V (May) at page 221 while disposing of that petition, it was held that a detention order loses its force in absence of an approval/confirmation from the govt. This point has been discussed at length in that petition. However it will be sufficient to repeat that when an order is passed by an Officer Mentioned in sub-section (2) of section 8 of the Act, the life of such an order in absence of its approval from the Govt. is only 12 days. If No approval comes within this period, by a fiction of law, created in terms of sub-section (4) of section 8 of the Act, the said order shall lose its force."

In absence of any specific denial by the respondents and settled legal position, the order impugned is held illegal and liable to be quashed.

42. From the perusal of the grounds of detention, it is emphatically clear that some vague allegations have been leveled against the detenu which lack specification about the details of each and every incident which proves that the Detaining Authority has not applied its mind to the facts and contents of the police dossier (which was not supplied to the detenu) and thus, the order of the detention which has been passed on vague allegations lacking specification cannot sustain the test of law. The order of detention as such lacks the subjective satisfaction on the part of the Detaining authority which vitiates the legality of the impugned order.

43. There is no denying the fact that the right to liberty, besides being constitutional right guaranteed under Article 21 of the Constitution of India is one of the basic human right of an individual and the said right cannot be taken 30 away unless there are sufficient grounds available for depriving a person of his liberty. There is no denying the fact that state has to strike balance between the individual right and the right of the society but at the same time, the State is duty bound to protect the interest of society which are paramount importance if pitted against individual interest. When the state or any statutory authority takes an action to deprive an individual of his personal liberty, then the law which permits taking of such action has to be strictly followed by the authority. The subjective satisfaction arrived at on the basis of material available with the detaining authority has to be, thus, subjected to close scrutiny to find out whether satisfaction arrived at is bona fide or not.

The detention order even otherwise also is rendered bad in the eye of law as the detaining authority has not recorded any compelling reasons for issuing the detention order in the face of criminal case being registered against the detenu in which he has already been released on bail.

44. I am fortified with the view taken by this Court in Mohammad Maqbool Beigh Vs. State of J&K & ors., reported as 2007 (I) SLJ 89 wherein it has been held as under:-

"Thus, the authority while passing the preventive detention has to give the compelling circumstances on the basis of which he proceeds to direct preventive detention of the detenu.

Since no compelling reasons have been recorded by the detaining authority in the present case, I find the order impugned cannot stand. The petition is, therefore, allowed and detention order is hereby quashed."

CONCLUSION

45. Thus, in light of what has been stated hereinabove coupled with the settled legal position, Order No.DMS/PSA/135/2022 dated.03.10.2022 passed by District Magistrate, Srinagar is hereby quashed and the detenu namely Amir Ali Bhat alias Kancha S/o Ali Mohammad Bhat R/o Boatman Colony Bemina, Srinagar, is ordered to be set at liberty forthwith if not required in any other case.

46. Registry is directed to hand over the record of the case to the learned counsel for the respondents against proper receipt.

(Wasim Sadiq Nargal) Judge Jammu 13.04.2023 RAM MURTI Whether the judgment is reportable ? Yes/No Whether the judgment is speaking ? Yes/No

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Jammu & Kashmir High Court - Srinagar Bench