Jammu & Kashmir High Court
Vikas Singh vs Union Territory Of J&K And Others on 14 July, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 07.06.2023
Pronounced on: 14.07.2023
WP(Crl) No. 61/2022(O&M)
Vikas Singh .....Appellant(s)/Petitioner(s)
q
Through: Mr. Ankesh Chandel, Advocate
vs
Union Territory of J&K and others ..... Respondent(s)
Through: Mr. Vishal Bharti, Dy. AG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The petitioner has filed the present petition for quashing the order of detention bearing No. 06/PSA of 2022 dated 03.10.2022 issued by the respondent No. 2, whereby the petitioner has been detained under Section 8(1)(a) of Jammu and Kashmir Public Safety Act, 1978 (in short 'Act').
2. The petitioner has assailed the order of detention on the following grounds:-
(i) That the petitioner was provided a copy of detention order and FIRs only and no copy of dossier was given to the petitioner. The father of the petitioner moved an application with the respondent No. 2 to provide the copy of the dossier but the same was refused by the respondent No. 2.
(ii) That the petitioner was earlier detained vide order No. 11/PSA of 2017 dated 16.03.2017 and the same was quashed by this Court vide order dated 14.11.2017. The detention order is absolutely silent about the same and the FIR Nos. 07/2011, 201/2014, 14/2015, 16/2016 and 141/2016 taken note of by the respondent No. 2 while issuing the order impugned, were also relied upon by the detaining authority at the time of issuance of earlier order of detention.
(iii) That the FIR No. 53/2019 under Section 341 and 506 RPC stands already compromised and the charge sheet arising out of FIR No. 125/2019 stands 2 WP(Crl) No. 61/2022 already dismissed as the petitioner was discharged by the court of learned Munsiff, Samba vide order dated 18.04.2022. FIR No. 239/2022 is still under investigation and the petitioner has been granted bail. The latest update of above mentioned three FIRs and the orders passed by the courts have not been brought to the notice of the detaining authority.
(iv) That the detaining authority has observed that it has gone through the dossier which clearly shows that the dossier has been reproduced or if any other material was sent to the detaining authority, it was not considered by the detaining authority. The allegations on the basis of which, the petitioner has been ordered to be detained do not fall within the purview of the activities considered prejudicial to the maintenance of public order and as such, the order of detention is not sustainable in the eyes of law.
(v) That the procedural safeguards guaranteed under Article 22(5) of the Constitution of India were not adhered to, while passing the impugned order of detention.
3. Respondent No. 2 has filed the response, wherein it has been stated that as per the dossier forwarded by the Senior Superintendent of Police, Samba dated 03.10.2022, it was found that the petitioner was a notorious criminal, who had continuously involved himself in number of criminal activities and as such, he was a threat to the life and liberty of people of Samba District. The motive of the petitioner was not only to create terror among the peaceful and law abiding citizens of the town but also to form a big criminal gang by encouraging criminal minded people to join with the petitioner and commit criminal activities. Taking into consideration the illegal activities of the petitioner and the various FIRs registered against him, the petitioner was detained vide order No. 06/PSA of 2022 dated 03.10.2022. More so, the Government of J&K vide its order dated 03.11.2022 has confirmed the order of detention. It is further averred that as per execution report submitted by the respondent No. 3, the grounds of detention (09 leaves) and other 3 WP(Crl) No. 61/2022 documents (13 leaves) were provided to the petitioner and the grounds of detention were explained to him in Hindi, Urdu and Dogri language, which he understood fully. In acknowledgment thereof, he has signed the execution report on 06.10.2022. In nutshell, the stand of the respondent No. 2 is that all the procedural safeguards have been complied with by the respondent No. 2 while issuing and executing the order of detention.
4. Mr. Ankesh Chandel, learned counsel for the petitioner has submitted that out of eight FIRs relied upon by the detaining authority while detaining the petitioner, five FIRs were relied upon earlier by the detaining authority while issuing the detention order No. 01/PSA of 2017 dated 08.04.2017. The said detention order was quashed by this Court vide order dated 14.11.2017. Once the earlier detention order was quashed by this Court, the respondents could not have relied upon five FIRs, those were relied upon by the detaining authority while issuing the earlier detention order, that was quashed by this Court. In charge sheet arising out of FIR No. 125/2019, the petitioner was discharged vide order dated 18.04.2022 by the court of Munsiff (JMIC), Samba. So far as FIR No. 239/2022 is concerned, the charge sheet has been filed against the other accused and not the petitioner. Mr. Chandel, learned counsel for the petitioner has produced the copy of charge-sheet in order to substantiate his submission.
5. Mr. Vishal Bharti, learned Dy. AG has submitted that the petitioner is a habitual offender and number of FIRs have been registered against him and taking into consideration the illegal activities of the petitioner, he was ordered to be detained under the Act.
4WP(Crl) No. 61/2022
6. Heard learned counsel for the parties and perused the record including detention record.
7. A perusal of the execution report as well as grounds of detention reveals that all the material documents relied upon by the detaining authority have been received by the petitioner, which is evident from the execution report dated 06.10.2022 when the order of detention was executed by Inspector, Rajeev Kumar. Further perusal of the receipt of grounds of detention reveals that the petitioner has received the grounds of detention and other connected documents and receipt of grounds of detention has been signed by the petitioner in acknowledgement of receipt of the documents and other documents relied upon by the detaining authority. The grounds of detention and other documents were provided to the petitioner and were also explained to him in Urdu, Hindi and Dogri language. Thus, this Court does not find any force in the contention raised by the petitioner that he was not provided the dossier and other documents at the time of execution of detention order.
8. The other contention of the petitioner is that the detaining authority has not taken note of the latest status of three FIRs relied upon by the detaining authority i.e. FIR No. 53/2019 under Sections 341, 382, 506 and 34 RPC of Police Station, Vijaypur, FIR No. 125/2019 under Section 3/25 Arms Act of Police Station, Vijaypur and FIR No. 239/2022 under Sections 307, 323, 34 IPC, 3/4/25 Arms Act of Police Station, Samba.
9. A perusal of the grounds of detention reveals that the following FIRs have been relied upon by the detaining authority:-
5WP(Crl) No. 61/2022
S. No. FIR No. Offences Police Station
1 07 of 2011 341/323 RPC Vijaypur
2. 201 of 2014 341/323/147/148 RPC Samba
3. 14 of 2015 307/341/34 RPC, 4/25 Vijaypur
Arms Act
4. 16 of 2016 341/504/506 RPC, 3/25 Vijaypur
Arms Act
5. 141 of 2016 307/341/323/34 RPC, Vijaypur
4/25 Arms Act
6. 53 of 2019 341/382/506/34 RPC Vijaypur
7. 125 of 2019 3/25 Arms Act Vijaypur
8. 239 of 2022 307/323/34 RPC, 3/4/25 Samba
Arms Act
10. It is further evident from the grounds of detention that the detaining authority was conscious of issuance of earlier detention order, as in the grounds of detention the detaining authority has mentioned that the petitioner was detained earlier under the Act, in terms of order No. 11/PSA of 2017 dated 16.03.2017 (the number and the date of the order of detention have been wrongly mentioned, the same mistake committed by the petitioner as well in the present petition). The detention order mentioned in the grounds of detention is not same, which was quashed by this Court vide its order dated 14.11.2017. A perusal of the order dated 14.11.2017 reveals that the order of detention was bearing No. 01/PSA of 2017 dated 08.04.2017.While perusing the detention record produced by the respondents, this Court finds that there is no record in respect of the detention order bearing No. 11/PSA of 2017 dated 16.03.2017 that has been mentioned in the grounds of detention by the 6 WP(Crl) No. 61/2022 respondent No. 2 and the only record in respect of order of detention dated 16.03.2017 is an averment made in the dossier by the respondent No. 3. As reference to the detention order dated 16.03.2017 has been made in the grounds of detention, it was incumbent on the part of the respondent No. 2 to have sought the details of the detention order and further was to verify as to whether it was challenged by the petitioner or not, if challenged, then what was the outcome. The mentioning of the wrong detention order in the grounds of detention clearly reflects that the detaining authority has merely acted as a post office and simply endorsed the dossier sent by the respondent No. 3 to the respondent No. 2 for detaining the petitioner. It clearly shows the non-application of mind on the part of the respondent No. 2. The comparative perusal of the grounds of detention and the dossier submitted by the respondent No. 3 reveals that the grounds of detention are the verbatim reproduction of the dossier submitted by the respondent No. 3 to the respondent No. 2.The respondent No. 2 has not applied her own mind upon the material placed before her by the respondent No. 3 to record her subjective satisfaction that the detention of the petitioner was necessary so as to prevent the petitioner from indulging in any activity prejudicial to the maintenance of public order.
11. Reliance is placed upon the decision of Apex Court in case titled 'Jai Singh v. State of J & K1' and the relevant portion 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 1 (1985) 1 SCC 561 7 WP(Crl) No. 61/2022 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 11 WP(Crl) No. 64/2021 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 greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."
12. Further, in 'Rajesh Vashdev Adnani v. State of Maharashtra 2 ' the Hon'ble Apex Court quashed the order of detention, as the detention order was the verbatim reproduction of the proposal of the sponsoring authority.
13. Further from the record, it is evident that the petitioner was discharged in FIR No. 125 of 2019 by the court of learned JMIC, Samba vide order dated 18.04.2022, which too was not brought to the notice of the detaining authority by the respondent No. 3. It was obligatory on the part of the respondent No. 3 to place all the relevant material before the respondent No. 2, whether favouring the petitioner or not, so as to enable the detaining authority to apply its mind independently to record its satisfaction that the detention of the petitioner was necessary, as his activities were prejudicial to the maintenance of public order. So far as FIR No. 239 of 2022 under Sections 307/323/34 RPC, 3/4/25 Arms Act is concerned, the petitioner was initially named as an accused but in final report that was filed before the concerned court, the petitioner was not arrayed as an accused. It is 2 (2005) 8 SCC 390 8 WP(Crl) No. 61/2022 mentionable here that charge-sheet in this case was filed only after the passing of detention order, so it may not vitiate the detention order but not bringing to the notice of the respondent No. 2, the order of discharge dated 18.04.2022 passed by learned JMIC Samba and the order dated 14.11.2017 passed by this court, would of course vitiate the order of detention. Thus, the order of detention is required to be quashed on this ground as well. In Union of India v. Ranu Bhandari3, the Hon'ble Apex court quashed the order of detention when some of the vital documents which had a direct bearing on the detention order, were not placed before the detaining authority.
14. In view of what has been said and discussed above, this Court is of the considered view that the order of detention bearing No. 06/PSA of 2022 dated 03.10.2022 passed by the respondent No. 2 is not sustainable in the eyes of law and accordingly, the same is quashed. The petitioner be released forthwith, provided he is not required in any other case.
15. Detention record be returned back.
(RAJNESH OSWAL) JUDGE Jammu:
14.07.2023 Neha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. 3 (2008) 17 SCC 348