Jammu & Kashmir High Court
Pritam Singh vs Union Territory Of Jammu & Kashmirand ... on 9 November, 2021
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(Crl) No. 26/2021
CrlM Nos. 837 & 838/2021
Reserved on: 29.10.2021
Date of Pronouncement: 09.11.2021
Pritam Singh
.........Petitioner
Through:Mr. Jagpal Singh, Advocate
Versus
Union Territory of Jammu & Kashmirand others
.........Respondent(s)
Through:Mr. Ravinder Gupta, AAG
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge
ORDER
09.11.2021
1. Through the medium of instant petition quashment of detention order bearing No. 01/PSA of 2021 dated 06.05.2021, (hereinafter for short the "impugned order") passed against the detenu, namely,Pritam Singh,is being sought for by the petitioner as also a writ of mandamus for his release.
2. It is being stated in the petition that the detenu was arrested in connection with various FIRs registered against the detenue as is reflected in the grounds of detention and subsequently placed under preventive detention vide Order No. 04/PSA of 2020 dated 10.08.2020, which was challenged in a writ petition, being WP(Crl) No. 34/2020. The said order of detention was quashed by this Court in terms of judgementdated 26.11.2020 and detenu was directed to be released from preventive detention, but the detenu was not released and while being in custody, he has been again placed under preventive detention in terms of impugned order of detention.
SYED TASADUQ QADRI 2021.11.12 11:30 I attest to the accuracy and integrity of this document 2 WP (Crl) No.26/20213. Learned counsel avers that in spite of quashment of earlier detention order, respondents have again detained the detenu under preventive detention in terms of impugned order of detention.
4. It is beingstated that grounds of detention, pressed into service by detaining authority to place detenu under preventive detention in terms of impugned order of detention, are identical to grounds of detention, used by detaining authority while issuing earlier detention order, already quashed by this Court and that the same shows non- application of mind on the part of detaining authority. It is being stated that the detaining authority has not narrated any fresh grounds of detention against detenu even though a passing reference has been made in the grounds of detention that the detenu, if released, would resort to gruesome criminal activities and expand his criminal gangs, which by itselfdoes not amount to fresh grounds when most of the incidents or grounds are taken from earlier grounds of detention and therefore, impugned detention order is bad in law because no fresh ground has been mentioned in second detention order. To buttress his argument, learned counsel has also annexed the judgement passed in the earlier writ petition in support of his submissions.
5. It is seen from the record of the file that this Court in the earlier writ petition has already held that the detaining authority while formulating the grounds of detention has failed to apply its mind, inasmuch as the grounds of detention are almost ditto copy of the police dossier. A perusal of the grounds of detention and police dossier reveals that the language and expression used in both the documents is more or less similar to each other with amalgamating of words. This clearly shows that the detaining authority has acted in a mechanical manner.
6. The grounds of detention bear reference to five FIRs; out of which the detenue is stated to have been acquitted in one FIR. There is nothing in the detention record or in the counter affidavit of respondent no.2 to show that the petitioner has been provided the copies of challans of the cases in which challans have been produced against him or that he SYED TASADUQ QADRI 2021.11.12 11:30 I attest to the accuracy and integrity of this document 3 WP (Crl) No.26/2021 has been provided the copies of the statements of witnesses recorded under section 161 Cr.P.C. of the cases in which investigation is still pending. Therefore, the contention of the petitioner that whole of the material which formed the basis of the grounds of detention was not supplied to him appears to be well founded. Aforesaid material assumes importance in the facts and circumstances of the case. It needs no emphasis, that detenu cannot be expected to make a meaningful exercise of his Constitutional and Statutory rights guaranteed under Article 22(5) of the Constitution of India and Section 13 of the J&K Public Safety Act, 1978, unless and until the material on which detention order is based, is supplied to him. It is only after detenu has all the said material available that he can make an effort to convince detaining authority and thereafter the Government that their apprehensions vis-à-vis his activities are baseless and misplaced. If detenu is not supplied the material, on which detention order is based, he will not be in a position to make an effective representation against his detention order. Failure on the part of detaining authority to supply material, relied at the time of making detention order to detenu, renders detention order illegal and unsustainable. These views are fortified, given the law laid down by the Apex Court in ThahiraHaris Etc. Etc. v. Government of Karnataka, AIR 2009 SC 2184; Union of India v. Ranu Bhandari, 2008, Cr. L. J. 4567; DhannajoyDass v. District Magistrate, AIR, 1982 SC 1315; Sofia Gulam MohdBham v. State of Maharashtra and others AIR 1999 SC 3051; and Syed AasiyaIndrabi v. State of J&K &ors, 2009 (I) S.L.J 219. My views are also cemented by the judgement dated 18.05.2021 delivered in WP (Crl) No. 107/2020 titled Mohammad Rafiq Mir v. UT of J&K and another.
7. It was also observed in the earlier order that perusal of grounds of detention formulated by respondent no.2 in the instant case shows that the detaining authority has observed that the activities of the detenu are prejudicial to the maintenance of law and order. Even in the counter affidavit filed by respondent no. 2 it has been averred that the activities of the detenu were prejudicial to 'maintenance of law and SYED TASADUQ QADRI 2021.11.12 11:30 I attest to the accuracy and integrity of this document 4 WP (Crl) No.26/2021 order and tranquility'. Section 8 of the J&K Public Safety Act does not include 'maintenance of law and order' as a ground for passing an order of detention. It only includes "public order" and not "law and order" as a ground for detention. 'Law and order' and public order are two different expressions. The Supreme Court has in the case of Dr Ram Manohar Lohia v. State of Bihar and others, 1966 AIR SC 740, held that any contravention of law always affects order but before it can be said to affect public order, it must affect the community or the public at large. It was observed that offences against "law and order", "public order" and "security of the State" are demarcated on the basis of the gravity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order though in the grounds of detention, the detaining authority had stated that by committing this offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community. It was held that mere citation of these words in the order of detention was more in the nature of a ritual rather than with any significance to the content of the matter.
8. Lastly it was observed in the judgement that from the decisions of the Supreme Court, the expression "law and order", "public order" and "security of the State" are distinct concepts though always not separate. Every public order if disturbed, must lead to public disorder but every breach of the peace does not lead to public disorder. As such, every act which is prejudicial to maintenance of 'law and order' may not be an act of prejudicial to the public order. Therefore, a person can be detained under the Act, if his activities are prejudicial to the 'public order' which is a ground of detention under the Act, but detention of a person whose activities are prejudicial to the maintenance of law and order cannot be legally sustainable as the same is not a ground of detention under the Act.
SYED TASADUQ QADRI 2021.11.12 11:30 I attest to the accuracy and integrity of this document 5 WP (Crl) No.26/20219. This Court while considering the earlier writ petitionWP(Crl) No. 34/2020, has quashed the detention order bearing No. 04/PSA of 2020 dated 10.08.2020, while dealing with grounds of detention used in support of the said detention order. The same grounds could not have been relied upon for making a fresh detention order. The authoritative judicial pronouncements on the subject are that even if the order of detention comes to an end either by revocation or by expiry of the period of detention, there must be fresh facts for passing a subsequent detention order. When a detention order is quashed by the Court, issuing a high prerogative writ like habeas corpus or certiorari, the grounds of said detention order should not be taken into consideration either as a whole or in part even along with fresh grounds of detention for drawing requisite subjective satisfaction to pass a fresh detention order because once the Court strikes down an earlier order by issuing rule, it nullifies the entire order. It is, therefore, clear that an order of detention cannot be made after considering previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming subjective satisfaction by detaining authority in making a detention order, the order of detention gets vitiated. It is of no consequence if further fresh facts, disclosed in the grounds of impugned detention order, have been considered. Reference in this regard may be made to judgements rendered in the cases of ChhaganBhagwan Kahar v. N. L. Kalna and others, [AIR 1989 SC 1234] and Ramesh v. State of Gujarat [AIR 1989 SC 1881]. Detention order, impugned herein, is, thus, liable to be quashed as the grounds of detention made use of by respondent no.2 while passing earlier detention orders, subsequently quashed by this Court, have been pressed into service while passing detention order in question.
10. Viewed thus, in the context of what has been observed, analyzed and considered in the preceding paragraphs, instant petition is allowed and consequent to which the impugned order of detention bearing No. 01/PSA of 2021 dated 06.05.2021 is quashed, with the direction to the SYED TASADUQ QADRI 2021.11.12 11:30 I attest to the accuracy and integrity of this document 6 WP (Crl) No.26/2021 respondents to release the detenu forthwith from preventive custody unless required in any other case.
11. Disposed of along with all connected CrlMs.
12. No orders as to costs.
13. Record produced by the respondents for perusal of this Court shall be handed over to learned counsel for the respondents.
(Javed Iqbal Wani) Judge JAMMU 09.11.2021 TASADUQ SAB:
Whether approved for reporting? Yes / No. SYED TASADUQ QADRI 2021.11.12 11:30 I attest to the accuracy and integrity of this document