Jammu & Kashmir High Court - Srinagar Bench
Ubaid Nazir Sofi vs Ut Of J&K & Ors on 10 August, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on: 26.07.2023
Pronounced on:10.08.2023
WP(Crl.) No.89/2023
UBAID NAZIR SOFI ...PETITIONER(S)
Through: - Ms. Arshie Zuhar, Advocate.
Vs.
UT OF J&K & ORS. ...RESPONDENT(S)
Through: - Mr. Jahangir Ahmad Dar, GA.
CORAM:HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner, through his father Nazir Ahmad Sofi, has challenged his detention ordered by District Magistrate, Baramulla - respondent No.2 herein, in terms of order No.04/DMB/PSA/2023 dated 07.02.2023. Pursuant to the aforesaid order, the petitioner has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order.
2) Before adverting to the grounds of challenge urged by the learned counsel for the petitioner impugning the order of detention, it is apt to notice the material facts on the basis of which the detaining authority has derived its subjective satisfaction for placing the detenue under the preventive detention. As per the grounds of detention the petitioner is alleged to have a criminal bent of mind and under the garb of being a political activist has extorted money from general public, Page 2 of 8 particularly unemployed youth on the pretext of providing government job to them by issuing fake and forged appointment orders. It is alleged in the grounds of detention that on 11.01.2023, two persons, namely, Shabir Ahmad Mian and Naseer Ahmad Malla belonging to Pattan staged a protest on the ground that they are feeling insecure because of the activities of the petitioner. After the information was received by the police about the illegal activities of the detenue FIR No.17/2023 for offences under Section 420, 384, 506 IPC was registered against the petitioner and he was accordingly arrested. At the time of framing the grounds of detention, the detenue was shown to be on Police Remand. It is also stated that under the garb of political affiliation, the petitioner has involved other people in his anti-social activities, misused his liberty and accomplished his anti- social activities successfully. It is on the basis of the allegations contained in the FIR, the detaining authority arrived at subjective satisfaction to detain the detenue in order to restrain him from acting in any manner prejudicial to the maintenance of public order. The detaining authority, thus, found it imperative to detain the detenue by invoking Section 8 of the J&K Public Safety Act and it is in the aforesaid backdrop, the impugned detention order has been passed against the detenue and he has been lodged in Central Jail, Kotebhalwal, Jammu.
3) Upon being put to notice, the respondents appeared through their counsel and filed their reply affidavit, wherein they have disputed the Page 3 of 8 averments made in the petition and insisted that the activities of detenue are highly prejudicial to the maintenance of public order. It is pleaded that the detention order and grounds of detention along with the material relied upon by the detaining authority were handed over to the detenue and the same were read over and explained to him. It is contended that the grounds urged by the petitioner are legally misconceived, factually untenable and without any merit. That the detenue was informed that he can make a representation to the government as well as to the detaining authority against his detention. It is further claimed in the reply affidavit that all statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority and that the order has been issued validly and legally. The respondents have produced the detention record to lend support to the stand taken in the counter affidavit.
4) The impugned order of detention has been challenged by the petitioner on several grounds. However, during the course of arguments, the learned counsel for the petitioner has laid much emphasis on the ground that the detaining authority has relied upon the allegations contained in FIR No.17/2023 for offences under Section 420, 384 and 506 IPC for indulging in cheating which, if found proved against the detenue, would constitute a criminal act and said criminal act can, by no means, be treated as an act to harm the public order.
5) I have learned counsel for the parties and perused the record. Page 4 of 8
6) From a perusal of grounds of detention, it clearly transpires that the petitioner has been put under preventive detention primarily for his involvement in FIR No.17/2023. The question that arises for determination is as to whether the allegations contained in the aforesaid FIR, which is made basis of the detention order, even if taken to be true on their face value, would constitute an act which has the potentiality of disturbing the public order. If the answer to the aforesaid question is in affirmative, then the impugned order of detention is sustainable in law or else the same cannot be made basis for passing an order of detention against the petitioner.
7) In the above context, it would be apt to notice some judicial precedents on the subject. This Court has, in the case of Khursheed Ahmad Bhat vs. UT of J&K & Ors (WP(Crl) No.324/2022 decided on 20.09.2022), while drawing a distinction between the expression "law and order" and "public order" has observed as under:
The term "law and order" and "Public order"
look deceptively similar but both have different connotations. While former is a continual ongoing term, the latter is more temporal in nature. In the case of public order, the community or the public at large is affected by a particular action whereas the act or acts that affect only few individuals maybe a case of law and order. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects „law and order‟ but before it can be said to affect public order, it must affect the community or public at large. The nature of criminal act, the manner in which it is committed and its impact are some of the factors that determine whether a particular act would fall within the realm of "public order" or " law and order". What is alleged in the FIR, which is sole basis of putting the detenue under preventive Page 5 of 8 detention, clearly falls within the ambit of term "Law and Order". Unless the criminal act attributed to the detenue has the effect of disturbing the even tempo of life of community or public at large, it would remain in the realm of "Law and order" and thus cannot be made the basisof preventive detention.
8) The Supreme Court has, in the case of Rekha v. State of T.N, (2011) 5 SCC 244 discussed the nature and scope of preventive detention. Para Nos. 29 and 30 of the judgment are relevant to the context and the same are reproduced as under:-
29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.
30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal.
9) Again, the Supreme Court in the case of Banka Sneha Sheela v. State of Telangana and ors, (2021) 9 SCC 415, was dealing Page 6 of 8 with a case of preventive detention ordered by the State of Telangana on almost similar grounds. There were as many as five FIRs registered against the detenue therein under Sections 420, 406 and 506 IPC and in all the FIRs the detenue was granted anticipatory bail. The detention was ordered primarily on the ground that remaining at large of the detenue would be detrimental to public order. The Supreme Court, while relying upon its earlier judgments, observed as under:-
14. There can be no doubt that for "public order"
to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects "law and order" but before it can be said to affect "public order", it must affect the community or the public at large.
15. There can be no doubt that what is alleged in the five FIRs pertain to the realm of "law and order" in that various acts of cheating are ascribed to the detenu which are punishable under the three sections of the Penal Code set out in the five FIRs. A close reading of the detention order would make it clear that the reason for the said order is not any apprehension of widespread public harm, danger or alarm but is only because the detenu was successful in obtaining anticipatory bail/bail from the courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the detenu, there can be no doubt that the harm, danger or alarm or feeling of insecurity among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make-believe and totally absent in the facts of the present case.
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19. To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of "public order" in that case was because of the expression "in the interests of"
which occurs in Articles 19(2) to 19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article 19 of the Constitution. When a person is preventively detained, it is Articles 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression "public order" in the context of a preventive detention statute is wholly inapposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large.
10) In the light of the ratio laid down in the afore-noted case, let us now advert to the facts of the present case. In the instant case the allegations in the FIR registered against the petitioner may be a problem of law and order but would not certainly come within the purview of the term "public order‟. There is nothing mentioned in the grounds of detention to demonstrate that the activities of the detenue, on the basis of which the FIR came to be registered against him, had an impact of disturbing even the tempo of life of the community or had the effect of affecting the public at large. The offences with which the detenue has been charged in the FIR are substantive offences and the ordinary law of the land is sufficient to deal with the detenue, if he is ultimately found guilty of the Page 8 of 8 allegations leveled against him in the FIR. The apprehension of the detaining authority that the remaining of detenue at large would be detrimental to the maintenance of public order, cannot be made basis for placing the detenue under preventive detention. A simple case of cheating and fraud, without having wider ramifications, cannot be made the basis of issuing the detention order in the name of maintaining the public order. The impugned order is, therefore, not sustainable in law.
11) For the foregoing reasons, the petition is allowed and the impugned detention order is quashed. The respondents are directed to release the petitioner from the preventive custody forthwith, provided he is not required in connection with any other case.
12) The record be returned to learned counsel for the respondents.
(Sanjay Dhar) Judge Srinagar 10.08.2022 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No