Jammu & Kashmir High Court
Davinder Singh vs Ut Of Jammu And Kashmir And Another on 5 August, 2020
Equivalent citations: AIRONLINE 2020 J AND K 407
Author: Puneet Gupta
Bench: Puneet Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Virtual Mode)
Pronounced on : 05.08.2020
WP (Crl) No. 7/2020
Crl M No. 151/2020
Davinder Singh ...Petitioner(s)..
Through :- Mr. P.N.Raina, Sr. Advocate with
Mr. J.A.Hamal, Advocate
v/s
UT of Jammu and Kashmir and another ...Respondent(s)..
Through :- Mr. Aseem Sawhney, AAG.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
::: :
JUDGMENT
1. The petition is admitted to hearing. The counter affidavit has been filed in the case and case was taken up for final hearing. The order of detention vide No. 07 of 2019 dated 27.08.2019 in terms of Section 8(1) (a) of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter called as 'the Act'), passed by the respondent No.2 District Magistrate, Jammu, is under challenge in the present writ petition filed by the detainee through his father on the ground that the order has been passed without application of mind and is mere reproduction of the police dossier submitted by SSP, Jammu; that taking recourse to FIRs filed against the petitioner Davinder Singh is without justification; that the order was passed for indefinite period in violation of the statutory period prescribed under law.
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2. The counter affidavit has been filed on behalf of the respondent No.2 wherein the order impugned is justified by stating there that the same has been passed after applying mind to the dossier submitted by SSP, Jammu with a purpose to prevent the petitioner from indulging in such activities which are highly prejudicial to the maintenance of public order; that the petitioner was supplied with material documents on the basis of which the order was passed; that the detention was required in the interest of safety and security of the citizens; that the petitioner is having criminal mind set and propensity to continue with the criminal activities; that the petitioner has been detained after following due process of law. The prayer is for dismissal of the petition.
3. Heard learned counsel for the parties and perused the record. The record has been produced by the learned counsel for the respondents.
4. At the outset, it may be noted that the order of detention dated 27.08.2019 is passed by respondent No.2 after the communication No. CRB/Dossier/19/12/DPOJ dated 23.07.2019 is received from SSP Jammu. It is also made out from the record that the order impugned is executed on 28.08.2019 at Central Jail, Kot Bhalwal, Jammu. Further, the order of detention has been approved by the respondent No.1 vide Order No. HOME/PB-V/1656 of 2019 dated 06.09.2019. This fact is revealed from the copy of Government Order No. Home/PB-V/1206 of 2020 dated 19.05.2020 whereby the order of detention has been extended for a further period of three months. It is suffice to mention herein that the initial order of detention has been approved from time to time by the respondent No.1, the last order being of 19.05.2020 (supra). The record also shows that the grounds of detention have been communicated to the detainee on 28.08.2019 and receipt in respect of 3 WP(Crl) No. 7/2020 the same is on the file. It is also manifest that dossier of detention and other related documents with total 73 leaves have been supplied to the petitioner on the said date. The signature of the petitioner is also on the receipt of grounds of detention.
5. The learned Senior Counsel during the course of arguments has submitted that as the petitioner was not provided with the relevant material, the petitioner could not approach the Advisory Board for representation as provided under the Act. The Court is of the view that this argument of learned counsel is without basis. It is not mentioned in the grounds of the petition that the petitioner had no opportunity to approach the Advisory Board with the representation on the ground pleaded by the counsel for the petitioner and thus the argument is not sustainable. It is revealed from the record that the Advisory Board also approved the detention order vide dated 24.09.2019. It is also mentioned in the order that no representation appears to have been made by the detenue before the said Advisory Board. Otherwise too, as mentioned above, the grounds of detention and relevant material had been supplied to the petitioner while handing over the detention order. He had all the opportunity to approach the Advisory Board for filing of the representation against his detention order but he failed to exercise the right of his own volition.
6. Learned Senior Counsel for the petitioner has argued that the order of detention, impugned in the petition, is verbatim of the dossier forwarded by SSP, Jammu to the respondent No.2 and thus shows that the respondent No.2 has not applied the mind while issuing the order of detention.
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7. Learned counsel for the respondents has argued that the detaining authority passed the order after a month of the communication received from the SSP Jammu and thus shows that the order has not been issued in a hurried manner but the mind has been duly applied by the concerned authority. The basic features required for passing such sort of order stand complied with.
8. The Court after going through the contents of the dossier and the order of detention does find infirmity in the impugned order. The dossier has been sent vide dated 23.07.2019 by SSP, Jammu to the respondent No.2. The order impugned has been passed on 27.08.2019 meaning thereby that order was passed after more than a month of sending of the dossier by SSP, Jammu. The perusal of the impugned order reveals that the respondent No.2 has only taken note of the dossier submitted by SSP, Jammu while passing the order of detention. The District Magistrate has made opinion that she is satisfied that in order to prevent Davinder Singh from acting in any manner prejudicial to the maintenance of the public order, the detention of the petitioner is immediately required and then the detention under Section 8(1) (a) of the Act is passed against the petitioner. There is no dispute with the proposition of law that no specific words are required for passing the detaining order. In fact, it is the contents of the order in whole which spell out if the detaining authority has applied its mind. The respondent No.2 has taken her time to act upon the dossier sent by SSP, Jammu recommending detention of the petitioner-Davinder Singh. Merely because the respondent No.2 has taken more than a month to pass the detention order after receiving the dossier from SSP, Jammu does not by itself indicate that the respondent No.2 had applied mind while 5 WP(Crl) No. 7/2020 issuing the detention order. The detention order for all practical purposes can be said to be verbatim of the dossier statement sent by SSP, Jammu. Addition of few words or lines re-iterating merely to what has been written in the dossier may not by itself make out that the detaining authority had applied mind while issuing the detention order. The fact that the word 'Public Order' has been mentioned in the detention order is not ipso facto sufficient to hold that the respondent No.2 had applied its mind while passing the impugned order.
9. In HCP NO.10/2017 decided on 01.09.2017 this Court held that the detaining authority did not apply its mind as the detention order was verbatim of the dossier except for some words which were mentioned in the detention order. The present case is no different from the above mentioned case where the order of detention was quashed on the ground that the detaining authority had failed to apply its mind while passing the detention order. The subjective satisfaction of the detaining authority while passing the detention order is not beyond the scrutiny of the courts. The order is required to be quashed on this ground itself in the present case.
10. The detention order was otherwise warranted on the basis of the dossier prepared by SSP, Jammu is another issue which is required to be answered in the present case. The basis of passing the detention order is indeed several FIRs which have been registered against the petitioner-Davinder Singh and the same is revealed from the order itself. Six FIRs stand registered against Davinder Singh as per the detention order and one of the FIRs bearing No. 121/2010 registered with Police Station, Gandhi Nagar, Jammu dates back to the year 2010 under Section 302 RPC and other relevant Acts. As per the detention 6 WP(Crl) No. 7/2020 order, the challan stands closed against the detainee. The two FIRs bearing No. 115/2017 under Section 451/323 RPC and 230/2017under sections 341/382 RPC, 3/25 Arms Act stand registered with Police Station, Satwari and Bahu Fort, Jammu respectively. Challan filed in FIR No. 115/2017 stands closed. FIR No. 266/2018 under Sections 452/323/34 RPC, FIR No. 99/2018 under Section 436 RPC and FIR No. 159/2019 under the NDPS Act also stand registered against Davinder Singh. In all these FIRs the investigations are in progress. It is not in dispute that Davinder Singh stands bailed out in all the aforesaid FIRs. The detention order has been passed on the ground that the acts of the petitioner are prejudicial to the maintenance of the public order. The precise submission of the learned counsel for the petitioner is that the FIRs cannot be the ground for detaining the person more so when the alleged criminal acts of the petitioner are not related to public order as distinguished from law and order. In rebuttal, the learned counsel for the respondents has argued that the acts of the petitioner point towards disruption of the public order and that is why the order impugned came to be passed against the petitioner. It is submitted by the counsel that the petitioner entertains criminal ideology as is evident from the FIRs filed against him and has propensity to indulge in criminal activities in unabated fashion.
11. The court before taking stock of the issue under discussion would like to summarize some of the points which have evolved in preventive detention cases and are: the purpose of the detention order is to prevent the person from committing the acts in future which may be prejudicial to the public order or against security of the State, the satisfaction of the detaining authority while passing detention order is subjective one; 7 WP(Crl) No. 7/2020 the detaining authority has to apply its mind while passing such an order; the grounds of detention and the material must be supplied to the detainee at the earliest unless the material forming the detention order is to be dispensed with keeping in view the facts of the case, single act of the person may also result in passing of detention order against him and that the aspect of 'law and order' has to be distinguished from 'public order' in a detention case.
12. The very glance on the FIRs mentioned in the detention order reveal that the alleged criminal acts of the petitioner are aimed against the individuals and not against the public at large. The contention of the learned counsel for the respondents that the FIR filed under provisions of the NDPS Act is against the society at large and not necessarily against the individual and, therefore, the detention order for maintaining public order can be passed against the petitioner. Undoubtedly, a single act can in certain circumstances attract the argument of the counsel for the respondents. However, in the case in hand the respondent no.2 has not singled out the alleged case slapped under NDPS Act against the petitioner as a reason affecting the society at large or affecting public order but has generalized the criminal acts of the petitioner affecting public order. The preventive detention order cannot be invoked in a casual manner as the liberty of the individual which is sacrosanct certainly gets curtailed. The alleged criminal acts of the petitioner can be tried under ordinary criminal law without invoking detention order.
13. In case titled Munagala Yadamma v. State of Andhra Pradesh and others (2012) 2 SCC 386 the Hon'ble Supreme Court quashed the detention of the appellant on the ground that the act committed by the 8 WP(Crl) No. 7/2020 appellant could be tried under ordinarily law and the preventive detention was not warranted in the present case. In this case, the appellant was booked under various provisions of Andhra Pradesh Prohibition Act relating to illicit distillation of liquor.
14. In Arun Ghosh v. State of West Bengal (1970) 1 SCC 1998 the Apex Court made a distinction between public order and law and order in the light of the provisions of the Preventive Detention Act. In this case, the detention order was quashed on the ground that the acts of the petitioner were directed against a particular family and not against women in general from the locality and the assaults were also on the individuals. It could not be said that the community at large was being disturbed or in other words, there was a breach of public order or likelihood of the breach of public order.
15. In Jai Singh and others v. State of Jammu and Kashmir (1985) 1 SCC 561 the detention of the appellant was quashed as it was not recorded in the detention order that the appellant was already in custody in connection with a criminal case at the time of passing of the detention order and thus non-application of mind from the detaining authority.
16. In Mohammad Hussain v. Commissioner Secretary to Government, Home Department and others, HCP No. 22/2019 decided on 16.08.2019, this Court keeping in view the facts and circumstances of the case dismissed the petition filed against detention order.
17. In U.O.I. V. Dimple Happy Dhakad (Cr.Appeal 1064/2019, decided on 18.7.2019) the Apex Court upheld the detention order of the respondent who was involved in the smuggling of gold for the last three years and the detaining authority had held that the respondent had 9 WP(Crl) No. 7/2020 propensity to indulge in the same act of smuggling and that the act of the respondent had impact on the economy.
18. In Haradhan Saha v. State of West Bengal, reported as AIR 1974 SC 2154, the Hon'ble Supreme Court held that elaborate rules of natural justice are excluded either expressly or by necessary implication where procedural provisions are made in the statute or where disclosure, of relevant information to an interested party, would be contrary to the public interest. It was also held that where the police arrests a person and later on enlarges him on bail and steps are taken to prosecute him under code of criminal procedure and FIR is also lodged that may not be a bar to issue order of preventive detention against the said person. It was further held that the order of preventive detention is based on a reasonable prognosis of the future behavior of a person based on his past conduct in the light of the surrounding circumstances.
19. The learned counsel for the respondents has banked upon the decision in Mian Abdul Qayoom ors. v. Union Territory of J&K & (LPA NO. 28/2020 decided on 28.5.2020) in order to fortify his argument that the petitioner has ideology to commit criminal acts time and again without any remorse and these acts began in the year 2010 with murder case though he was acquitted in that case. The learned counsel for the petitioner has argued that the argument of the counsel cannot be entertained when he has been acquitted in two of the FIR and the other FIRs mentioned in the impugned order have not culminated into conviction of the petitioner. The court is of the considered opinion that the reliance placed by the counsel for the respondents on the observations made in the aforesaid authority is misplaced. The facts in the said case were altogether different and the observations of the court 10 WP(Crl) No. 7/2020 cannot be pressed into service in the present case. The acts of the petitioner mentioned in the impugned order which span over a decade even if disclose the criminal mentality, as submitted by the respondents, the same could not invite the detention order against the petitioner as the said acts of the petitioner are not related to society at large and the alleged acts of the petitioner are already proceeded under ordinary criminal law.
20. The court in the light of the discussion made above the court holds the order of detention impugned in the present petition unsustainable in the eyes of law and is quashed. The petitioner shall be released forthwith from custody if otherwise not presently required in some other case. The record received from the learned counsel for the respondents be returned back.
(PUNEET GUPTA) JUDGE Jammu 05.08.2020 Pawan Chopra Whether the order is speaking? Yes Whether the order is reportable? Yes PAWAN CHOPRA 2020.08.05 07:53 I attest to the accuracy and integrity of this document