Jammu & Kashmir High Court - Srinagar Bench
Iqbal Ahmad Mian vs Ut Of J&K & Ors on 13 October, 2023
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
1
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR.
Reserved on: 07.10.2023
Pronounced on: 13.10.2023
WP(Crl) No. 90/2023
Iqbal Ahmad Mian. ...PETITIONER(S)
Through:- Mr. Imtiyaz Ahmad, Advocate.
Vs.
UT OF J&K & ORS ...RESPONDENT(S)
Through: - Mr. Jahangir Ahmad Dar, GA
CORAM: HON‟BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE.
JUDGMENT
1. Petitioner, through his father, Mohd Yousuf Mian, has assailed his detention order passed by the District Magistrate, Baramulla (the Detaining Authority) vide Order No. 05/DMB/PSA/23 dated 07.02.2023 (the impugned order), whereby the petitioner- Iqbal Ahmad Mian S/O Mohd Yousuf Mian R/O Mian Mohalla, Tehsil Pattan, District Baramulla ("the detenue") has been put under preventive detention with a view to prevent him from indulging in such activities which are prejudicial to the maintenance of the public order.
2. Before adverting to the grounds of challenge, it is necessary 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.
3. The grounds of detention which have been made basis by the Detaining Authority for the preventive detention of the detenue is the Police dossier dated nil which reveals that the detenue is involved in WP(Crl) No. 90/2023 Page 1 2 different anti social activities including cheating the general public particularly unemployed youth on the pretext of providing Government jobs. The detenue has swindled lacs of Rupees from gullible youth by issuing fake/forged appointment orders. A case bearing FIR No. 11/2023 stands registered by the police about the illegal activities of the detenue and during the course of investigation, the offences under Sections 420, 384,506 IPC were established against the detenue and his associate leading to the detenue. The detenue is indulging in cheating innocent people on the pretext of providing government jobs and the nature of the activities of the detenue disturbs the public order. The normal law in the case of detenue will not be sufficient to deter him from indulging in such activities and his detention under PSA had thus become imperative.
4. It is on the basis of these allegations, the Detaining Authority arrived at subjective satisfaction to detain the detenue from acting in any manner prejudicial to the maintenance of public order and, as such, by invoking Section 8 of the J&K Public Safety Act passed the impugned detention order and directed his lodgment in Central Jail Kotebhalwal, Jammu.
5. The respondents in their counter affidavit have stated that the detenue has been found indulging in different anti-social and criminal activities which include cheating the general public , particularly un-employed youth on the pretext of providing government jobs in order to extort money from them. The detenue has been found involved in case FIR No. 17/2023 registered in Police Station Pattan. It is also stated that the activities of the detenue were found prejudicial to the maintenance of public order and, accordingly, police concerned prepared a dossier and WP(Crl) No. 90/2023 Page 2 3 that normal law of the land is not sufficient to deter him from indulging in the nefarious activities and forwarded dossier along with record to the Detaining Authority with the recommendations to order preventive detention of the detenue.
6. Mr. Jahangir Ahmad Dar, learned GA, has produced the scanned copy of the detention record.
7. The impugned order of detention has been challenged by the petitioner inter-alia on the following grounds:
(I) "That the Detaining Authority has made the basis for the detention of the detenue, the sole FIR No.17/2023 registered by Police Station, Pattan under Section 420, 384,506 IPC, if found proved against the detenue, would constitute a criminal act and cannot be treated as an act which will disturb the peace and public order;
(II) That the material relied upon by the Detaining Authority to arrive at subjective satisfaction for putting the detenue under preventive detention was not supplied to the detenue and was not also explained him to the language, which he could understand, meaning, thereby that the detenue has been prevented from making an effective representation to the Detaining Authority or the Government against his detention;
(III) That the grounds of detention are vague, irrelevant and non-
existent and, therefore, no prudent person can make an effective and purposeful representation".
8. Perusal of the grounds of detention demonstrates that the detenue has been put under preventive detention for his involvement in FIR No.17/2023. The allegations reflected in the aforesaid FIR, even if taken to be true on its face value, do not constitute an act to disturb the public WP(Crl) No. 90/2023 Page 3 4 order.
9. This Court has already dealt with the issue raised in the instant petition in WP (Crl) No. 324/2022 (Khurshid Ahmad Bhat v. UT of J&K & Ors) decided on 10.08.2023 and has observed as under:-
The term "law and order" and "Public order" appears to be common but 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 may be 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 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 basis of preventive detention.
To understand the concept better, here is an example: when two drunkards quarrel and fight in the public street, there is disorder but not public disorder. They can be dealt with under powers of maintenance of law and order but cannot be detained for disturbing public order. However, where two fighters are of rival communities and one of them tries to raise communal passions, the problem is still of law and order but raises apprehension of public disorder.
10. In Banka Sneha Sheela v. State of Telangana and ors, (2021) 9 SCC 415, the Apex Court while confronted with a case of preventive WP(Crl) No. 90/2023 Page 4 5 detention ordered by the State of Telangana on almost similar grounds where as many as five FIRs were registered against the detenue 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, in paragraphs No. 14, 15 and 19 has held thus:-
"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 Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would makeit 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.
19. To tear these observations out of context would be fraught with great dangerwhen 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 to Article 19(2) to19(4) and which is pressed into service only when a law is challenged as being unconstitutional for being violative of Article19of the WP(Crl) No. 90/2023 Page 5 6 Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four cornersof 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 anysection thereof at large."
11. Recently, the Supreme Court in the case of Ameena Begum v. State of Telegana (Arising out of SLP (Criminal ) No. 8510 of 2023) discussed the nature and scope of preventive detention. Paragraphs No. 39,40, and 41 of the judgment are relevant and, therefore, set out below:-
"39.In fine, what we find is that the order of detention impugned in that writ petition failed to differentiate between offences which create a "law and order"
situation and which prejudicially affect or tend to prejudicially affect "public order". The present Detention Order fares no better. Even if the offences referred to in the Detention Order, alleged to have been committed by the Detenu have led to the satisfaction being formed, still the same are separate and stray acts affecting private individuals and the repetition of similar such acts would not tend to affect the even flow of public life.
The offence in respect of the minor girl did exercise our consideration for some time but we have noted that the Detenu was not arrested because of an order passed by the High Court on an application under section 438 of the Criminal Procedure Code ("Cr. PC", hereafter). The investigating agency not having elected to have such order quashed by a higher forum, the facts have their own tale to tell. Even otherwise, the gravity of the offences alleged in Arun Ghosh (supra) was higher in degree, yet, the same were not considered as affecting 'public order'. The only other offence that could attract the enumerated category of "acting in any manner prejudicial to the maintenance of public order" and an order of preventive detention, if at all, is the stray incident where the Detenu has been charged under section 353, IPC and where the police has not even contemplated an arrest under section 41 of the Cr. PC.
WP(Crl) No. 90/2023 Page 6 7
40. On an overall consideration of the circumstances, it does appear to us that the existing legal framework for maintaining law and order is sufficient to address like offences under consideration, which the Commissioner anticipates could be repeated by the Detenu if not detained. We are also constrained to observe that preventive detention laws-an exceptional measure reserved for tackling emergent situations- ought not to have been invoked in this case as a tool for enforcement of "law and order". This, for the reason that, the Commissioner despite being aware of the earlier judgment and order of the High Court dated 16th August, 2021 passed the Detention Order ostensibly to maintain "public order" without once more appreciating the difference between maintenance of "law and order" and maintenance of "public order". The order of detention is, thus, indefensible.
41. We could have ended our judgment here, but having regard to the arguments advanced at the Bar we wish to deal with the other issues too. This, we are persuaded to do, in order to remind the authorities in the state of Telangana that the drastic provisions of the Act are not to be invoked at the drop of a hat.
12. Heard learned counsel for the parties and perused the record, this Court is of the view that the impugned detention order cannot sustain in law.
13. This case is squarely covered by the decisions (supra). The allegations in the sole FIR registered against the detenue has already been dealt with by this Court and the detention of the petitioner in WP (Crl) No. 89/2023, who was also shown to be involved in the same FIR with identical allegations has been quashed. The operative portion of the judgment is reproduced herein below:-
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 WP(Crl) No. 90/2023 Page 7 8 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.
14. The petition, in view of above, is disposed of and the detention Order No. 05/DMB/PSA/23 dated 07.02.2023, whereby Iqbal Ahmad Mian S/O Mohd Yousuf Mian R/O Mian Mohalla, Tehsil Pattan, District Baramulla, is quashed and the respondents are directed to release the detenue from preventive custody provided he is not required in any other case.
15. Disposed of.
16. Detention record be returned to learned counsel for respondents (Moksha Khajuri Kazmi) Judge Srinagar 13.10.2023 Abdul Rashid, PS Whether the order is reportable Yes/No Whether the order is speaking Yes/No WP(Crl) No. 90/2023 Page 8