Jammu & Kashmir High Court
Pritam Singh vs Union Territory Of J&K & Ors on 26 November, 2020
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(THROUGH VIRTUAL MODE)
Reserved on: 10.11.2020
Pronounced on:. 26. 11.2020
WP(Crl.) No.34/2020
CrlM No.936/2020
Pritam Singh ...petitioner(s)
Through: - Mr. Jagpaal Singh Advocate
Vs.
Union Territory of J&K & ors. ...Respondent(s)
Through: - Mr. Aijaz Lone Dy.AG
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. Through the medium of instant petition, the petitioner has challenged the order of detention bearing No.04/PSA of 2020 dated 10.08.2020 passed by respondent No.2 (hereinafter referred to as the „detaining authority‟) whereby the petitioner has been detained in terms of the provisions of J&K Safety Act, 1978 (hereinafter referred to as the „Act‟).
2. The petitioner has challenged the impugned order of detention on the grounds that it has been passed by the detaining authority in a mechanical manner and without proper application of mind, inasmuch as the grounds of detention are mere reproduction of the dossier; that 2 WP(Crl.) No.34/2020 the petitioner has not been provided with the material on the basis of which the grounds of detention have been formulated; that in the grounds of detention, it has been mentioned that the petitioner has formed a gang of criminals, but particulars of the persons forming this gang has not been provided to the petitioner; that mere registration of criminal cases against the petitioner cannot be a ground to pass the impugned order of detention without any compelling reasons which are not discernible from the grounds of detention; that in the grounds of detention, the detaining authority has used the expression "maintenance of law and order" which is distinct from the expression "public order" and because „law and order‟ is not a ground for detention under the provisions of the Act, as such, the order of detention is not sustainable in law.
3. Counter affidavits have been filed by respondents No.2 and 4. Respondent No.2 i.e. the detaining authority, in its counter affidavit, has stated that the criminal activities of the petitioner are highly prejudicial to the maintenance of public law and order and tranquility. It has been further contended that all the procedural safeguards have been followed while passing the impugned order of detention against the petitioner and that the grounds of detention and material in support thereof has been furnished to the petitioner. It has been contended that none of the legal statutory or fundamental rights of the petitioner has been violated and that the impugned order of detention has been passed after proper application of mind.
3 WP(Crl.) No.34/2020
4. I have heard learned counsel for the parties and perused the record of the case including the record of detention.
5. The first and foremost ground which has been urged by the learned counsel for the petitioner is that the detaining authority while formulating the grounds of detention has failed to apply its mind, inasmuch as the grounds of detention are almost xerox copy of the police dossier. A perusal of grounds of detention and the police dossier reveals that the language and expression used in both the documents is almost similar to each other with intermixing of words here and there. This clearly shows that the detaining authority has acted in a mechanical manner.
6. The Supreme Court has, in the case of Jai Singh and others vs. State of Jammu and Kashmir, (1985) 1 Supreme Court Cases 561 clearly stated that where the grounds of detention are verbatim reproduction of the dossier submitted by the police, it goes on to show that there is non-application of mind on the part of the detaining authority. In Rajesh Vashdev Adnani vs. State of Maharashtra and others, (2005) 8 SCC 390, the Supreme Court again reiterated that where the detention order is verbatim reproduction of the police dossier, the said order suffers from non-application of mind on the part of the detaining authority.
7. In the face of the aforesaid legal position, it can safely be stated that the detaining authority in the instant case has acted in a 4 WP(Crl.) No.34/2020 mechanical manner while passing the impugned order of detention rendering it unsustainable in law.
8. The other ground urged by learned counsel for the petitioner is that the whole of the material forming the basis of the grounds of detention was not supplied to him. This has been contradicted by respondent No.2 in his affidavit.
9. The detention record produced before this Court contains the report of execution and receipt executed by the petitioner. According to this receipt, the petitioner has received a total of 27 leaves comprising copy of detention warrant (01 leaf), grounds of detention (07 leaves), notice of detention (01 leaf), copy of dossier (04 leaves) and other related documents (14 leaves). Neither the execution report, nor the receipt executed by the petitioner specifies as to what other related documents were furnished to the petitioner. The grounds of detention bear reference to five FIRs out of which the petitioner is stated to have been acquitted in one FIR, in the second and third FIRs, the challans are stated to have been presented before the Court and in the fourth and fifth FIRs, the investigation is stated to be going on. There is nothing either in the detention record or in the counter affidavit of respondent No.2 to show that the petitioner has been provided the copies of the challans of the cases in which challans have been produced against him or that he has been provided the copies of the statements of the witnesses recorded under Section 161 Cr.PC of the cases in which investigation is still pending. Obviously, 5 WP(Crl.) No.34/2020 all these documents cannot comprise only fourteen leaves. The detention record contains copies of only the first page of the challans stated to have been filed against the petitioner. Thus, it appears that only the first page of the challans and not all the documents annexed thereto have been furnished to the petitioner. 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.
10. Apart from the above, it is stated in the grounds of detention that the petitioner has formed a gang of criminals, but no particulars of the persons forming gang of criminals are given in the order of detention, nor it is the case of respondent that they have furnished the particulars of these persons to the petitioner. Thus, the particulars of persons forming alleged gang of criminals has remained a mystery for the petitioner. Furnishing of material which formed the basis of grounds of detention to the detenu is a vital safeguard available to him in terms of Article 22 (5) of the Constitution of India. Failure of the detaining authority to provide whole of the relevant material to the detenu constitutes a breach of these safeguards rendering the order of detention unsustainable in law. Without the material which forms the basis of grounds of detention, a detenu is not expected to make an effective representation against the order of detention which is a right guaranteed to a detenu even under the provisions of the J&K Public Safety Act. Thus, non supply of material forming the basis of grounds 6 WP(Crl.) No.34/2020 of detention to the detenu in the instant case renders the impugned order of detention legally unsustainable.
11. The other ground urged by the petitioner is that the detaining authority has, while passing the impugned order of detention, stated that the activities of the detenu are prejudicial to the maintenance of law and order which is not a ground available for detention of a person under the provisions of the J&K Public Safety Act.
12. A perusal of the grounds of detention formulated by respondent No.2 in the instant case shows that the detaining authority has observed that the activities of the petitioner are prejudicial to the maintenance of law and order. Even in the counter affidavit of respondent No.2, it has been contended that the activities of the petitioner were prejudicial to maintenance of law and order and tranquility. Section 8 of the Act 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 Ram Manohar Lohia vs. State of Biar, 1966 AIR (SC) 740, while drawing a distinction between the expressions „maintenance of law and order‟ and „public order‟, observed as under:
"51 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 7 WP(Crl.) No.34/2020 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 disorder or only some ?. 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 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 it 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.
52 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 8 WP(Crl.) No.34/2020 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.
10 From the above quoted observations of the Supreme Court, it is clear that the expression „public order‟ is quite distinct from the expression „law and order‟. While „law and order‟ is a wider term which includes within it the expression „public order‟, as such, every act which is prejudicial to maintenance of „law and order‟ may not be an act 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. For this reason also, the impugned order of detention is liable to be quashed.
11 The cumulative effect of the aforesaid discussion leads to the only conclusion that in the instant case, the respondents have not adhered to the legal and Constitutional safeguards while passing the impugned detention order against the detenu. The impugned order of detention bearing bearing No.04/PSA of 2020 dated 10.08.2020 passed by respondent No.2 i.e. District Magistrate, Samba is, 9 WP(Crl.) No.34/2020 therefore, unsustainable. Accordingly, the same is quashed. The detenue is directed to be released from the preventive custody forthwith, provided he is not required in connection with any other case.
The record, as produced, be returned to the learned counsel for the respondents.
(Sanjay Dhar) Judge Jammu 26.11.2020 "Sanjeev PS Whether the order is speaking: Yes Whether the order is reportable: Yes SANJEEV KUMAR UPPAL 2020.11.27 16:19 I attest to the accuracy and integrity of this document