Jammu & Kashmir High Court
Dilbagh Singh vs Union Territory Of Jammu & Kashmir on 20 August, 2024
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 25.07.2024
Pronounced on: 20.08.2024
Case:- HCP No.50/2024
CM No.1920/2024
Dilbagh Singh, age 34 years,
S/o Sh. Janak Singh,
R/o Ward No. 4, Simbal Camp,
R.S.Pura, Jammu.
At present lodged at
Central Jail, Kot Bhalwal, Jammu,
Through the wife Amneet Kour, age 25 years,
W/o Sh. Dilbagh Singh,
R/o Malikpur,Miran Sahib,
R. S. Pura, Jammu.
.....Petitioner
Through: Mr. Karman Singh Johal, Advocate
Vs
1. Union Territory of Jammu & Kashmir
through Commissioner/Secretary to Government,
Home Department,
Government of Jammu &Kashmir,
Civil Secretariat, Jammu.
2. Financial Commissioner (ACS),
Home Department, Civil Secretariat,
Jammu.
3. District Magistrate,
Wazarat Road, Jammu.
4. Senior Superintendent of Police,
J&K, Jammu.
5. Superintendent,
Central Jail, Kot Bhalwal,
Jammu.
..... Respondents
Through: Mr. Rajesh Thappa, AAG
2 HCP No.50/2024
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
01. Heard Mr. Karman Singh Johal, learned counsel for the petitioner and perused the detention record produced by the respondent No. 3 - District Magistrate, Jammu.
02. Acting through his wife - Amneet Kour, the petitioner has petitioned this Court with the present writ petition instituted on 03.04.2024 seeking quashment of preventive detention slapped against him under the Jammu & Kashmir Public Safety Act,1978 by the respondent No. 3 - District Magistrate, Jammu and approved by the respondent No. 1 - Govt. of UT of Jammu & Kashmir.
03. The respondent No. 4 - Sr. Superintendent of Police(SSP), Jammu vide his communication No. CRB/Dossier/2022/21/ DPOJ dated 27.10.2022 came to submit a dossier to the respondent No. 3 - District Magistrate, Jammu on the basis of which the preventive detention of the petitioner under the Jammu & Kashmir Public Safety Act, 1978 was solicited on the ground that the alleged activities of the petitioner are highly prejudicial to the maintenance of public order and, therefore, warranted his preventive detention.
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04. In the dossier so framed against the petitioner, the respondent No. 4 - Sr. Superintendent of Police (SSP), Jammu came to refer the petitioner to be a hardcore criminal, desperate character and a history sheeter of Police Station Miran Sahib. The petitioner is also projected to be a habitual offender involved in many criminal offences violating the rule of law by indulging in attempts to murder/stabbings by using illegal fire arms and sharp edged weapons carrying out his criminal activities thereby terrorizing the innocent citizens thereby rendering his activities prejudicial to the maintenance of public order. The criminal cases in which the petitioner's involvement came to be referred in the dossier are as under:-
I. FIR No. 98/2009 U/S 452/323/34/RPC 4/25 A. Act P/S Miran Sahib Brief facts of the case are that on 30-07-2009, on the statement of injured person namely Raspreet Singh S/O Sohan Singh Caste Sikh R/O Makhanpur Gujran, Tehsil R.S. Pura Jammu to the effect that the subject alongwith his associates were doing some nasty taks outside his house. When he asked them not to do so, they started thrashing him. The complainant ran towards his house but the subject alongwith his associates entered his house and attacked him with sharp edged weapons (Tokas) and injured him badly. On this instant case was registered and subject and his associates were arrested and weapon of offence was recovered from their possession. The case was challaned before the Hon'ble Court of Law on 15-10- 2009.
II. FIR No. 97/2012 U/S 307/324/201/34/RPC 4/25 A. Act P/S. Bahu Fort Brief facts of the case are that on the statement of Kamaljeet Singh S/O Gurdeep Singh R/O H. No. 73, Sector No. 07, Nanak Nagar, Jammu-wherein he stated that on 24-05-2012 the subject alongwith his two associates came on a motorcycle in the shop of Parveen Singh S/O Raghubir Singh R/O Talab Tillo Jammu at 4 HCP No.50/2024 Transport Nagar, Narwal Jammu and attacked Parveen Singh with sharp edged weapons (Tokas) and injured him severely. They attacked him with criminal and common intention to kill him. On this instant case was registered in Police Station Bahu Fort Jammu. During the course of investigation subject and his associates were arrested and weapon of offence ie Tokas were recovered. Challan of the said case was produced before the Hon'ble Court of Law on 29-05-2014.
III. FIR No. 43/2014 U/S 323/341/RPC P/S Miran Sahib Brief facts of the case are that the case has been registered on 23-03-2014 on the statement of injured person namely Tejinder Singh @ Happy S/O Mohinder Singh Caste Sikh R/O W.No.04 Simbal Camp to the effect that on the said date subject stopped him on a road that goes to his house and assaulted him, beating him to pulp and also injured him. The subject also threatened him to kill him next time. On this instant case stands registered at Police Station Miran Sahib and investigation was set into motion. After completion of investigation, the challan of the case stands produced before the Hon'ble Court of law on 23-09- 2014.
IV. FIR No. 73/2015 U/S 307/341/147/148/RPC 4/25 A. Act P/S Miran Sahib Brief facts of the case are that the instant case was registered on 12-05-2015 on the statement of one Sachin Singh @ Sunny S/O Nagarmal R/O Ward No. 13, R.S. Pura Jammu to the effect that when he was standing with his friend namely Tajinder Singh @ Happy at ward No. 4, Simbal Camp Miran Sahib, Jammu, the subject alongwith his associates attacked them with sharp edged weapons. Somehow Tajinder Singh @ Happy managed to escape and the complainant namely Sachin Singh @ Sunny was brutally attacked by the subject and his criminal associates and inflicted severe injuries to his body. Later the subject was arrested and a sharp edged weapon (Toka) was recovered from his possession. Chailan of the said case was produced before the Hon'ble Court of law on 11-04-2016.
V. FIR No. 80/2015 U/S 307/147/148/RPC 3/25 4/25 A. Act P/S Miran Sahib Brief facts of the case are that the instant case was registered on 22-05-2015 on the statement of injured person namely Balwinder Singh @ Bindu S/O Shamsher Singh R/O Gurdaspur Punjab A/P Talab Tillo to the effect that when he was waiting for matador near Petrol Pump TCP Kharian, the subject alongwith 5 HCP No.50/2024 his associates came in a Santro car and attacked him with sharp edged weapons (Tokas) and injured him severely. Subject was carrying a country made Pistol (Katta) also. They threatened to kill him. On this the instant case stands registered at Police Station Miran Sahib. Challan of the said case was produced before the Hon'ble Court of Law on 22-09-2016.
VI. FIR No. 07/2016 U/S 307/341/323/34/RPC 3/25 A. Act P/S Miran Sahib Brief facts of the case are that on 07-11-2015, a murderous assault was carried out between the subject and the rival group in which the subject and the members of rival group got serious injuries. Both the parties attacked one another with sharp edged weapons and pistol. The assault was carried out with the criminal intention to kill opposite gang members. Upon this, instant case stands registered and investigation thereof started. During course of investigation, 1/O recorded the statement of witnesses. As per statement, involvement of the subject has been found. The case is still under investigation in Police Station Miran Sahib.
VII. FIR No. 28/2016 U/S 458/170/449/504/506/34/RPC 3/25 4/25 A. Act P/S Miran Sahib Brief facts of the case are that on 11-02-2016 the instant case was registered on the statement of one Jasneen Kour D/O Ranjeet Singh R/O ward No. 2, Simbal Camp to the effect that on the intervening night of 9/10 February 2016, subject alongwith his associates knocked their gate and asked them for opening the gate on the pretext that the subject is the SHO Police Station Miran Sahib. On opening the gate the subject along with his associates trespassed into their house carrying sharp edged weapons and pistol. The subject searched every nook and corner of their house and 2 threatening to kill them: all. The subject was searching for his rival gang member Tajinder Singh @ Happy. Subject was arrested in the instant case and a sharp edged weapon (Toka) was recovered from his possession. Challan of the said case was produced before the Hon'ble Court of Law on 14-07-2017. VIII. FIR No. 54/2016 U/S 307/341/323/34/RPC 3/25 4/25 A. Act P/S Miran Sahib Brief facts of the case are that the case has been registered on 21-03-2016 on the statement of Ajit Singh S/O Labh Singh Caste Sikh R/O Ward No. 04 Simbal Camp, Miran Sahib Jammu to the effect that he and his brother Gurpreet Singh @ Rocky S/O Labh Singh were going to home. When his brother reached 6 HCP No.50/2024 near link road the subject along with his associates appeared in two cars stopped him and attacked him with sharp edged weapons (Tokkas) and fired upon by country made pistol. The injured Gurpreet Singh @ Rocky lost his two fingers in the said attack and is presently under medical treatment at Punjab. Their intention was to kill him. On this the instant case stands registered at Police Station Miran Sahib and investigation is under process.
IX. FIR No. 62/2017 U/S 4/25 A. Act P/S Miran Sahib Brief facts of the case are that during the intervening night 26/27-04-2017 Police Party of P/S Miran Sahib Jammu conducted a surprise mobile naka at Link Road Simbal Morh Jammu. At about 0100 hours one vehicle registration No. JKO2AS-0863 on way from Simbal towards Miran Sahib was stopped by Police Party and conducted surprise checking. During checking of vehicle Subject and his associate were found travelling. During the search of vehicle 02 sharp edged weapons were found from subject and his associate. As per docket of I/C Police Party above mentioned case was registered. Challan of the said case was produced before the Hon'ble Court of Law on 09-05-2017. X. FIR No. 130/2018 U/S 8/21/22/NDPS Act P/S Gandhi Nagar Jammu Brief facts of the case are that on 03-06-2018, Police Party of P/S Gandhi Nagar established a Naka at Chatri Chowk, Gandhi Nagar. During Naka checking 01 Car Regd. No. JKO2BE-5454 coming from Bahu Plaza towards Gandhi Nagar was stopped and on questioning found that two persons sitting in the car were namely (1) Harjeet Singh @ Jumbo S/O Gurmukh Singh R/O Sec. No. 10, H No. 1424-F Nanak Nagar Jammu. (2) Dilbagh Singh S/O Janak Singh R/O W. No. 4 Simbal Camp. R S Pura. During personal search of Harjeet Singh, 18/20 grams of Heroine (Chitta) and on search of Dilbagh Singh 32/35 grams of heroine (Chitta) was found from their possession. In this regard FIR No. 130/2018 U/S 8/21/22/NDPS Act has been registered in P/S Gandhi Nagar. Challan of the said case was produced before the Hon'ble Court of Law. XI. FIR No. 142/2018 U/S 458/34/RPC 3/25 4/25 A. Act of P/S Bahu Fort Brief facts of the case are that on 25-05-2018, Police Party of P/S Bahu Fort was deputed for routine patrolling at Fruit Mandi. During Patrolling, Incharge Patrolling Party received an information through reliable sources that subject alongwith 3/4 persons had entered in shop No. 19 carrying sharp edged and 7 HCP No.50/2024 Lethal weapons and that they were trying to kill someone. Quick action of the Police party arrested all the 04 persons. During questioning, they disclosed their names as (1) Dilbagh Singh S/O Janak Singh R/O Simbal Camp, R S Pura, (2) Gagan Singh S/O Janak Singh R/O Simbal Camp, R S Pura, (3) Pardeep Singh S/O Ravinder Singh R/O Digiana Camp, Jammu. (4) Mohit Mahajan S/O Baldev Raj R/O Pathankot Punjab, India. During Personal search of - subject 01 Pistol alongwith 04 rounds was recovered from his possession. During search of Gagan Singh, 01 Kirch was recovered from his possession. During search of Pardeep Singh 01 Licensed Pistol was recovered from his possession. In this regard case FIR No. 142/2018 u/s 458/34/RPC 3/25/4/30 Arms act has been registered in P/S Bahu Fort. After completion of legal formalities challan of said case was produced before the Court of Law against subject.
XII. FIR No. 37/2019 u/s 8/21/22/29 NDPS Act P/S Gandhi Nagar Jammu Brief facts of the case are that on 03-02-2019, Police Party of P/S Gandhi Nagar laid a Naka at - Chattri Chowk, Gandhi Nagar Jammu. During Naka checking one Honda City car No. DL7CF 3558 was intercepted and on frisking/checking, 90 grams of Heroin was recovered from the possession of the driver of the Car namely subject and his associate namely Mumtaz Ahmed S/o Showkat Ali R/o Salwa Tehsil Mender Poonch. In this regard a case FIR No. 37/2019 U/S 8/21/22/29/NDPS Act has been registered at P/S Gandhi Nagar. After completion of legal formalities challan of said case stands produced before the Court of Law.
XIII. FIR No. 126/2022 U/S 307/382 IPC 4/25 Arms Act P/S Miran Sahib Brief facts of the case are that on 06-10-2022 one person namely Sandeep Singh S/O Jasbir Singh R/O Sarore, Bari Brahmana, Samba lodged a written report at P/S Miran Sahib to the effect that on that day when he was in his office, subject entered his office and asked him to give the key of his Car (Scorpio). When complainant refused to give him the Scorpio Car keys, in the meantime one Alto car come near to subject thereafter subject took sharp edged weapon from the said vehicle and attacked upon him with the intention to kill him due to which the complainant got injured. After that, subject snatched his golden chain and ran away from the spot with his Scorpio car bearing Regd. No. JK21H-9797 alongwith cash Rs.06 lakhs which was in said Scorpio Car. Upon this instant case was 8 HCP No.50/2024 registered at P/S Miran Sahib and investigation was entrusted to ASI Ranjit Singh VC BPP Kullian, Miran Sahib. The said case is still under investigation.
05. Of the aforementioned thirteen (13) FIRs in which the petitioner's alleged involvement was cited, resulting in being an under-trial in said cases, none of the cases, except for the last FIR No. 126/2022 under Sections 307/382 IPC and 4/25 of the Arms Act, 1959 registered with the Police Station Miran Sahib, were time-wise relevant for the framing of the dossier against the petitioner in October 2022. In the dossier, with the exception of the last FIR No. 126/2022, the respondent No. 4 - Sr. Superintendent of Police (SSP), Jammu, did not divulge the trial status of any of the criminal cases purportedly pending trial against the petitioner.
06. Acting upon the dossier, the respondent No. 3 - District Magistrate, Jammu verbatim following the text and context of the dossier came to draw a purported subjective satisfaction unto himself that the petitioner's alleged activities fell within the mischief of being prejudicial to the "Maintenance of Public Order"
under section 8 of the Jammu & Kashmir Public Safety Act,1978 and, therefore, warranted his detainment.
07. Accordingly, the respondent No. 3 - District Magistrate, Jammu, by virtue of Order No. 16 of 2022 dated 10.11.2022 under section 8(1)(a) of the J&K Public Safety Act, 1978 came to direct the preventive detention of the petitioner and directing him 9 HCP No.50/2024 to be arrested and detained in the Central Jail, Kot Bhalwal, Jammu.
08. Top to toe of the grounds of detention formulated by the respondent No. 3 - District Magistrate, Jammu is word to word reproduction of the dossier submitted by the respondent No. 4 - Sr. Superintendent of Police (SSP), Jammu, thus, leaving itself vulnerable to challenge from its very inception as to whether the subjective satisfaction is that of sponsoring authority i.e., Sr. Superintendent of Police (SSP), Jammu which has been routed through the respondent No. 3 - District Magistrate, Jammu to bring the petitioner's personal liberty under a forced curtailment.
09. The preventive detention Order No. 16 of 2022 dated 10.11.2022 came to be approved by the Home Department, Govt. of UT of Jammu & Kashmir by virtue of Govt. Order No.Home/PB-V/2845 of 2022 dated 14.11.2022.
10. At the time of passing of Govt. Order No.Home/PB- V/2845 of 2022 dated 14.11.2022 granting approval to the detention Order No. 16 of 2022 dated 10.11.2022, the petitioner was yet to be taken into custody, although he stood already implicated in FIR No.126/2022 registered on 06.10.2022, in which the petitioner came to be arrested on 04.01.2023 later to be released on bail in terms of an order dated 12.09.2023 by the trial court of learned 2nd Additional Sessions Judge, Jammu, 10 HCP No.50/2024 wherein Final Police Report/Challan came to be presented not only against the petitioner but also against three co-accused.
11. Thus, from the date of grant of bail in September, 2023, the preventive detention Order No. 16 of 2022 dated 10.11.2022 read with approval Govt. Order No.Home/PB-V/2845 of 2022 dated 14.11.2022 remained non-executed by the District Police, Jammu for the reason best known to it and undisclosed on record.
12. Inspector Bhopinder Singh, PID No. EXJ-085746 of the Police Station Miran Sahib detained the petitioner in execution of the detention warrant on 29.03.2024 and handed over the person of the petitioner to the Superintendent, Central Jail, Kot Bhalwal, Jammu as directed in terms of preventive detention Order No. 16 of 2022 dated 10.11.2022. The petitioner is said to have been handed over 208 leaves of detention order along with all the attending records with contents of detention warrant and the grounds of detention read over to the petitioner by the said detention order executing officer - Inspector Bhopinder Singh.
13. The respondents came to be granted last and final opportunity to file counter affidavit on 03.06.2024 and despite that the respondents defaulted to do the needful except for production of the detention record from the end of the respondent No. 3 - District Magistrate, Jammu, which suffices the purpose 11 HCP No.50/2024 for this court to go through it for taking up the adjudication of this writ petition on its own merits in the light of the detention record so produced.
14. The detention has been challenged by the petitioner, inter-alia, on the grounds that the same is meant to overreach the ordinary criminal law in operation against the petitioner with respect to his alleged involvements in the FIRs read with corresponding Police Reports (Challans) pending adjudication before the competent criminal courts of UT of Jammu & Kashmir. The basis of the preventive detention of the petitioner has been questioned on being related to stale grounds and punitive in mindset.
15. With respect to the timing of the execution of the detention order upon the petitioner on 29.03.2024 and detaining him for being delivered to the Central Jail, Kot Bhalwal, Jammu, it has been pleaded in the writ petition as to how the Police has played fast and loose with the process of law. The petitioner was arrested in connection with the investigation of FIR No.126/2022 on 04.01.2023 and despite grant of bail in his favour by the trial court of learned 2nd Additional Session Judge, Jammu in terms of an order dated 12.09.2023, the petitioner was not allowed to get released on a false pretext generated by the Police in relation to FIR No.119/2019 registered with the Police Station Janipur by projecting as if the bail granted to the petitioner in connection 12 HCP No.50/2024 with FIR No. 119/2019 by the court concerned was forfeited. Finally it is only on 28.03.2024 that the petitioner was released on bail only to be shown detained thereafter on 29.03.2024 by the Inspector Bhopinder Singh, SHO Police Station Miran Sahib in execution of the detention warrant.
16. Thus, the petitioner pleads that all along the District Police, Jammu was aware of the petitioner's arrest custody in connection with the challan related to FIR No.126/2022 and the detention order was never ever executed only to be given effect to when the petitioner was able to earn bail from the court of learned 2nd Additional Sessions Judge, Jammu in connection with the criminal trial related to FIR No. 126/2022 but still was not let out by machination at the end of the Police Station Janipur and that is how the preventive detention order has been assailed to be an abuse of process of law resorted to by the District Police, Jammu.
17. The petitioner has also assailed his preventive detention on the ground that the alleged activities of the petitioner in terms of the alleged incidents related to the FIRs against him do not relate to maintenance of public order and, therefore, cannot form the purported basis for an order of preventive detention to be passed against the petitioner.
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18. In the light of the submissions made by the learned counsel for the petitioner and upon perusal of the detention record, this Court is to examine the legality and validity of the preventive detention of the petitioner on the well-established principles and tests in the light of which the preventive detention of a person is examined in exercise of judicial review by a Constitutional Court acting under article 226 of the Constitution of India.
19. For enabling to subject the petitioner to preventive detention under section 8(1)(a) of the Jammu & Kashmir Public Safety Act, 1978, the respondent No. 3 - District Magistrate, Jammu has reckoned the petitioner's alleged activities to be prejudicial to the maintenance of public order. Thus, the first aspect which needs to be examined is as to whether the entire course of activities allegedly related to the petitioner in the alleged commission of offences referrable to series of FIRs corresponding with Police Reports (Challans) pending trial before the competent criminal courts of law provide a basis to hold that "Maintenance of Public Order" is likely to be a casualty at the hands of the petitioner.
20. There is no doubt to the fact that by number of criminal cases obtaining against the petitioner, the petitioner is a habitual offender with his alleged indulgences in commission of offences under Indian Penal Code and also Arms Act, 1959 but for that 14 HCP No.50/2024 purpose the ordinary criminal law 0of land has already set itself into operation thereby subjecting the petitioner to undergo criminal trials and in the event of any one or all of them resulting in holding the petitioner guilty, then the petitioner is bound to suffer conviction and corresponding sentence, but all this has to come by operation of law in its ordinary course.
21. "Maintenance of Public Order" in the context of invoking of preventive detention jurisdiction, which in the present case is under the Jammu & Kashmir Public Safety Act, 1978, is a subject of a very clear legal understanding which with the passage of time has gained and gathered clarity to the extent of admitting no confusion at the end of Law and Order Enforcement Authorities as well as Preventive Detention making authority. Under the cloak of "Maintenance of Public Order," the Law and Order Enforcement authorities and the preventive detention order making authority are not meant to deal with a person under the preventive detention jurisdiction who may otherwise be a challenge to law and order problem by his acts of omission or commission in isolation or in continuity, as is the case of the present petitioner.
22. The Code of Criminal Procedure, 1973 came to take the place of the Code of Criminal Procedure, 1898. The Code of Criminal Procedure, 1898 in itself carried provisions of preventive nature in dealing with the habitual offenders and so the same provisions came to be carried forward by the Code of Criminal 15 HCP No.50/2024 Procedure, 1973 in terms of Chapter-VIII wherein section 110 provides for taking security for good behavior from habitual offenders. Section 110 of the Code of Criminal Procedure, 1973 has gone to the extent of dealing with a person who may be so desperate and dangerous so as to render his being at large without security hazardous to the community. Even for dealing with such a character, the Code of Criminal Procedure, 1973 provided for an Executive Magistrate to get such a person to execute a bond with sureties for his good behavior for such period not exceeding three years as Magistrate thinks fit.
23. Now, if the legislature would have intended to deal with the habitual offenders even if hardcore, under preventive detention jurisdiction then the legislature will not have fallen short of borrowing the phraseology of section 110 of Code of Criminal Procedure, 1973, along with "Maintenance of Public Order" to subject a person to suffer preventive detention on account of being a habitual offender to the extent of being desperate and dangerous to render his being at large without security hazardous to the community and prejudicial to maintenance of public order, but the legislature has opted not to do so well bearing in mind the fact that the preventive detention custody is of a preventive nature and not of punitive nature and personal liberty of a person under article 21 of the Constitution of India is too prized and precious to be deprived just because a person is a habitual offender in the eyes of "Law and Order 16 HCP No.50/2024 Enforcement Authorities" or for that matter the preventive detention order making Authority.
24. In the case of Sama Aruna Vs State of Telangana and another, (2018) 12 SCC 150, the Hon'ble Supreme Court of India has put the preventive detention related authorities on a caution that it must be taken to know both, the purpose and the procedure of law of preventive detention jurisdiction. A detention order is based upon incidents so far back in the past as would have no bearing in the immediate need to detain a person has been counted to constitute stale grounds and a detention order which is founded on stale incidents is held to be recorded as an order of punishment for a crime, passed without trial, though purporting to be an order of preventive detention. The Hon'ble Supreme Court of India in this judgment has emphasized the essential concept of preventive detention not to punish a person for something done but to prevent him from doing it. On the similar lines is the judgment of the Hon'ble Supreme Court of India in the case of Khaja Bilal Ahmed Vs State of Telangana & others, (2020)13 SCC 632.
25. In the case of Pushkar Mukherjee & Ors Vs State of West Bengal, 1970 AIR SC 852, the Hon'ble Supreme Court of India came to deal with the concept of maintenance of public order vis-à-vis the alleged activities of the detenue in the said 17 HCP No.50/2024 case. In paragraph 9 & 10 it came forward with the following observations:-
"9. The difference between the concepts of 'public order' and 'law and order' is similar to the distinction between 'public' and 'private' crimes in the realm of jurisprudence. In considering the material elements of crime, the historic tests which each community applies are intrinsic wrongfulness and social expediency which are the two most important factors which have led to the designation of certain conduct as criminal. Dr. Allen has distinguished 'public' and 'private' crimes in the sense that some offences primarily injure specific persons and only secondarily the public interest, while others directly injure the public interest, and affect individuals only remotely
- (See Dr. Allen's Legal Duties, p. 249). There is a broad distinction along these lines, but differences naturally arise in the application of any such test. The learned author has pointed out that out of 331 indictable English offences 203 are public wrongs and 128 private wrongs.
10. The arguments was, however, stressed by Mr. Mukherjee on behalf of the respondent that the other grounds, viz., (c) and (d) mentioned in the order of the District Magistrate dated January 20, 1968 are more serious in character and may be held prejudicial to public order. We shall assume in favour of the respondent that grounds (c) and (d) are matters prejudicial to public order. But even upon that assumption the order of detention must be held to be illegal. It is now well established that even if any one of the grounds or reasons that led to the satisfaction is irrelevant, the order of detention would be invalid even if there were other relevant grounds, because it can never be certain to what extent the bad reasons operated on the mind of the authority concerned or whether the detention order would have been made at all if only one or two good reasons had been before them. (See the decisions of this Court in Shibban Lal Saksena v. The State of Uttar Pradesh, 1954 SCR 418 = ( AIR 1954 SC 179 ) and Dr. Ram Manohar Lohia v. State of Bihar, 1966-1 SCR 709 = ( AIR 1966 SC 740 ).)"
26. In the case of Bhupendra Vs State of Maharashtra and others, 2008 AIR SC 2306, the Hon'ble Supreme Court of India further dwelled upon the concept of security of State, maintenance of public order and law and order in the context of preventive detention jurisdiction as to in which cases activities are to be prejudicial to the maintenance of public order and the one relatable to law and order.
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27. Following judgments are also worth referring in the present case for bearing understanding of "Maintenance of Public Order" concept in preventive detention jurisdiction:-
1. Ramesh Thappar Vs Sate of Madras, 1950 AIR (SC) 124.
2. Brij Bhushan Vs State of Delhi, 1950 AIR (SC) 129.
3. Pushkar Mukherjee Vs State of West Bengal, 1970 AIR (SC)
852.
4. Arun Ghosh Vs State of West Bengal, 1970(1) SCC 98.
5. Arun Kumar Ghosh Vs State of West Bengal, 1972 (3) SCC
823.
6. Babul Mitra alias Anil Mitra Vs State of West Bengal and others, (1973)1 SCC 393.
7. Deepak Bose alias Naripada Vs State of West Bengal, (1973) 4 SCC 43.
8. Golam Hussain alias Gama Vs The Commissioner of Police, Calcutta and others, (1974)4 SCC 530.
9. Kuso Sah Vs The State of Bihar and others, (1974) 1 SCC
185.
10. Ashok Kumar Vs Delhi Administration and others, (1982) 2 SCC 403.
11. Ramesh Yadav Vs District Magistrate, ETAH and others, (1985) 4 SCC 232.
12. Vinod Singh Vs District Magistrate, Dhanbad, Bihar and others, (1986) 4 SCC 416.
13. R. Kalawati Vs State of T. N. and others, (2006) 6 SCC 14.
14. T. V. Sravanan alias S. A. R. Prasana Venkatachaariar Chaturvedi Vs State through Secretary and another, (2006) 2 SCC 664.
15. K. K. Saravana Babu Vs State of Tamil Nadu and another, (2008) 9 SCC 89.
16. State of Tamil Nadu through Secretary to Govt., Public (Law & Order-F) and another Vs Nabila and another, (2015) 12 SCC 127.
28. Applying the principles as evolved in the aforesaid judgments, the Court finds that the law and order enforcement 19 HCP No.50/2024 authority as well as the preventive detention order making authority were led to slap preventive detention against the petitioner just by the bare fact of his purported repeated involvements in cognizable cases under Indian Penal Code and Arms Act, 1959, but in all the said cases the petitioner in the course of time while under trial has come to earn bail which aspect remained not fully disclosed and divulged for the notice of District Magistrate, Jammu by the District Police, Jammu.
29. The very fact of the delayed execution of the detention order No. 16 of 2022 dated 10.11.2022 taking place upon the petitioner as late as on 28.03.2024 is a pointer to the fact that the very purpose for which the preventive detention order against the petitioner was conceived and granted was left self-frustrated otherwise the authorities could not have waited for an intervention of more than one year to lay its hands upon the person of the petitioner to get detained in execution of the preventive detention order.
30. Before giving rest to this judgment and coming up with the verdict, this Court is constrained to observe that it is very perplexing to find the casual mindset of the Law & Order enforcement agencies in sponsoring cases of preventive detention and the preventive detention ordering authorities acting under the Jammu & Kashmir Public Safety Act, 1978 that when on every possible and conceivable legal aspect of the preventive 20 HCP No.50/2024 detention law none else than the Hon'ble Supreme Court of India through its constitution bench judgments dating back from 1950 onwards and otherwise also has stated and set out the nuances of exercise of preventive detention jurisdiction, supplemented by the pronouncements on the subject by the High Court of Jammu & Kashmir and Ladakh, then why the sponsoring authorities as well as preventive detention order making authorities still keep on acting in a mechanical manner unmindful of the position of law on the subject matter as declared by the Hon'ble Supreme Court of India, and dish out the preventive detention orders which when tested on the anvil of law as settled by the Hon'ble Supreme Court of India fail to pass the muster thereby leaving at the end of the day the Rule of law undermined a strong lending impression as if it is of no inclination and interest to the sponsoring authorities and the preventive detention order making authorities, or for that matter even the Advisory Board to stay alive, alert and cognizant, without a miss, to the historical and contemporary development of the preventive detention jurisdiction.
31. A preventive detention order which comes to suffer failure and rejection in a habeas corpus writ petition costs a heavy price to the Rule of law. The preventive detention jurisdiction if exercised in a proper and prudent manner will serve its deterrent beneficial effects but if exercised in a pervert and pedantic manner will cause deleterious and brazen effects. This court hopes that the concerned authorities will revisit the 21 HCP No.50/2024 manner in which the preventive detention jurisdiction is exercised at their respective end.
32. The cumulative effect of the aforesaid facts and circumstances is that the preventive detention of the petitioner is held to be illegal and misconceived and more as a measure to by- pass the criminal trials going on against the petitioner and fast forward a mini-spell of punitive punishment upon the petitioner.
33. Accordingly, this Court holds the preventive detention Order No. 16 of 2022 dated 10.11.2022 passed by the District Magistrate, Jammu read with consequent order/s of approval/ confirmation by the Govt. of UT of Jammu & Kashmir as illegal and are, accordingly, quashed. The petitioner is directed to be released and restored to his personal liberty in case his custody is not required or solicited in any other criminal case pending investigation or trial before a competent court of law. The Superintendent of the concerned Jail to ensure release of the petitioner forthwith upon receipt of copy of this judgment along with the docket to be issued by the Registrar Judicial, Jammu to said effect.
34. Disposed of accordingly.
35. This Court registers its appreciation for the able legal assistance rendered by Mr. Karman Singh Johal, Advocate in 22 HCP No.50/2024 engaging this Court in referring to the extensive case law standing as precedent on the subject.
36. Detention record to be returned back to Mr. Rajesh Thappa, learned AAG by the Registrar Judicial, Jammu.
(RAHUL BHARTI) JUDGE JAMMU 20.08.2024 Muneesh Whether the order is speaking : Yes Whether the order is reportable : Yes Muneesh Sharma 2024.08.22 17:56 I attest to the accuracy and integrity of this document