Jammu & Kashmir High Court - Srinagar Bench
Peerzada Mohammad Waseem vs Union Territory Of Jk & Anr on 13 April, 2023
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (Crl) No. 200/2022
Reserved on 16.02.2023
Pronounced on 13.04.2023
Peerzada Mohammad Waseem ...Petitioner(s)/Appellant(s)
Through: Mr. N. A. Ronga, Adv.
Vs.
Union Territory of JK & Anr. ...Respondent(s)
Through: Mr. Sajad Ashraf, GA.
CORAM:
HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE
JUDGMENT
BRIEF FACTS: -
1. Through the medium of this petition, the petitioner through her mother Tasleema has called in question the impugned detention order bearing No. DMS/PSA/41/2022 dated 11th April 2022 on the ground that the detaining authority has not provided a copy of the Dossier, copies of record, material or other connected documents to the detenu so as to enable him to file an effective representation before the competent authority.
2. Learned counsel for the petitioner submits that the detaining authority has not provided a copy of the FIRs to the detenu with particular reference to copy of the FIR No. 85/2020 registered at Police Station Safakadal in which the detenu appeared to have been booked while passing the impugned order against the detenu. Accordingly, learned counsel for the petitioner argued that he has WP (Crl) No. 200/2022 Page 1 of 27 been deprived of his valuable right to make effective representation before the competent authority.
3. Learned counsel for the petitioner has further argued that the detenu was already in jail facing the trial in FIR No. 51/2017 registered at Police Station Nowhatta for more than three years as under trial accused and this is not known as to how he has been shown to have participated in rioting and stone pelting by the Police Station, Safakadal. Learned counsel for the petitioner further submits that no particular incident or date has been attributed to the detenu while passing the order of detention and there are general allegations against the detenu which has formed the basis for passing the order and accordingly, he has been deprived of making an effective representation.
4. Further case of the petitioner is that the concerned police agency has not apprised the detaining authority about the grant of bail to the detenu by the Special Court under TADA/POTA and NIA in FIR No. 51/2017. Accordingly, it has been projected by the learned counsel for the petitioner that the detaining authority has not shown his awareness regarding the status of the aforementioned case and as a consequence of which the order impugned cannot sustain the test of law and is liable to be quashed.
5. Learned counsel for the petitioner has further argued that the detenu has not applied for bail in FIR No. 85/2020 registered at Police Station Safakadal in which he has been shown to be involved falsely, frivolously and without any reason when the detenu was in custody in 2020, how he could take part in the offence of rioting and stone pelting and there was no compelling reason for the detaining authority to pass the order impugned against the detenu.WP (Crl) No. 200/2022 Page 2 of 27
6. Learned counsel for the petitioner has further argued that the detaining authority has failed to record any subjective satisfaction in terms of the mandate and spirit of the Public Safety Act. Further case of the petitioner is that the detenu was granted bail on 6th April 2022 and just after five days, he was detained by virtue of the order impugned and during these five days, how could the ideology or the activities of a person can be gauged and form an opinion that he has propagated nefarious ideology of the secessionist elements by implementing their organized programmes aimed at challenging the sovereignty of country which in turn disrupts public order and tranquility.
7. Learned counsel for the petitioner further argued that how in five days, the person's ideology can be gauged and during these five days, nothing is attributable to the petitioner which could be the basis for passing the order of detention.
8. Learned counsel for the petitioner further argued that the detenu has been labeled as a main accused in the Dy.SP lynching case registered at Police Station, Nowhatta which is totally baseless and manipulated in the light of the fact that his name was initially not included in the FIR amongst 17 accused persons and subsequently his name was included and there is no iota or whisper of evidence against the detenu produced by the prosecution during the course of trial and this was precisely the reason that the detenu has been granted bail by the trial court in the aforesaid FIR.
9. Further case of the petitioner is that instead of releasing him from the custody, he has been booked under the Public Safety Act by way of the order impugned.WP (Crl) No. 200/2022 Page 3 of 27
10. Learned counsel for the petitioner further states that since no specific incident has been quoted in the grounds of detention and instead some general allegations have been leveled against the petitioner which has formed the basis for issuing the order of detention and as a consequence of which, the petitioner has been deprived of making an effective representation and accordingly the order impugned cannot sustain the test of law and is liable to be quashed.
11. Further case of the petitioner is that there is no proximity with regard to the FIR Nos. 74/2010, 96/2010, 17/2011, 195/2015, 51/2017, 85/2020 which have been registered against the petitioner way back in the year 2010, 2011, 2015, 2017 and 2020 which could be the basis for passing the order in the year 2022.
12. Per contra, learned counsel for the respondents submits that he has verified from the record and he submits at the bar that inadvertently FIR No. 85/2020 has been registered against the detenu, but in fact FIR pertains to the year 2010 and inadvertently, the year has been mentioned as 2020 instead of 2010.
13. Learned counsel for the respondents further submits that detenu has not been acquitted in all the FIRs as alleged by the detenu. Learned counsel for the respondents has relied upon the grounds of detention in reference to the specific incident of Dy.SP lynching case, where specific allegation has been leveled against the petitioner. Learned counsel for the respondent further states that the decision to detain the detenu has been taken after all his activities in the past. Learned counsel further argued that the scope of the preventive detention and the ordinary criminal law is deficient and one solitary evidence/incident is sufficient to pass the order of detention.WP (Crl) No. 200/2022 Page 4 of 27
14. Learned counsel for the respondents has further argued that the scope of preventive detention is to prevent someone from indulging in any activity which is prejudicial to the security of the State and merely, that the petitioner stood acquitted in some of the FIRs does not mean that the detaining authority cannot pass the detention order more particularly, when the petitioner after getting the bail has indulged in activities which are prejudicial to the security of the State. Learned counsel for the respondent further submits that all the material which had been the basis for passing the order has been supplied to him which is evident from bare perusal of the original record maintained by the respondents and provided to this Court. Learned counsel for the respondents has further referred to the execution report in which the petitioner is a signatory having received the aforesaid record which has formed the basis for passing the order of detention. Learned counsel further submits that it is not so even while providing the detention order, the petitioner has been made aware for filing a representation but the petitioner has chosen not to file a representation and accordingly this ground is not available to the petitioner because he has voluntarily not chosen to file any representation.
15. Learned counsel for the respondents was put a specific query that how and under what circumstances, the ideology of a person can be gauged within five days from the date of passing the bail order and passing of the detention order, , learned counsel for the respondent has not given any satisfactory response in this regard and instead, learned counsel argued that it was a collective decision which has been taken by the detaining authority of his past acts which were attributable to him and finds mention in the grounds of WP (Crl) No. 200/2022 Page 5 of 27 detention, although, there is no proximity with regard to those FIRs with regard to the order of detention passed in the year 2022.
16. The petitioner in the instant case has been detained under preventive detention vide order of District Magistrate, Srinagar vide order No. DMS/PSA/41/2022, dated 11.04.2022. The detenu has challenged the constitutionality of the impugned order stating that the grounds stated in the detention order were false, frivolous and fictitious. The detenu further claims that he has not been provided the complete record on account of which he could not make an effective representation. The detenu also contended that he was not informed of his right to make a representation, as a result of which he did not make a representation.
17. It has been further contented by the petitioner that the detenu was granted bail in FIR No. 51/2017, the record of which was not placed before the detaining authority and that the detaining authority did not record any compelling reasons for the said detention.
18. The respondents on the other hand have contended that the there were several FIR,s in the name of the detenu in the year 2010,2011 and 2015. FIR 51/2017 and the latest FIR 85/2020.
19. As per the stand of the respondents, the detenu has been in touch with radical elements and himself has a radical ideology. He has been involved in anti national activities like stone pelting and an aid to the self styled terrorist outfits like TRF & JeM and therefore is a threat to both public order & security of state.WP (Crl) No. 200/2022 Page 6 of 27
LEGAL ANALYSIS:-
20. Before adverting to the case at hand, it is important to deal with what preventive detention is:
It would be apt to say that right of personal liberty is most precious right, guaranteed under the Constitution. It has been held to be transcendental, inalienable and available to a person independent of the Constitution. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India, reported as (1978 AIR SC 597), is to be just and fair. However, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object are to save society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case, it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person, having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent a person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) Constitution of India, therefore, leaves scope for enactment of preventive detention law.
21. Jammu & Kashmir Public Safety Act, 1978, is enacted to prevent the acts that are prejudicial to security of the State or maintenance of public order.
The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level ramifications. These acts are preceded by a good amount of planning and organization by the set of people WP (Crl) No. 200/2022 Page 7 of 27 fascinated in tumultuousness. If, however, in any given case, a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention.
Recently, same views and principles have been reiterated by the Hon'ble Supreme Court in Gautam Jain vs Union of India & anr. reported as AIR 2017 SC 230.
"Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127."
22. Coming to the rival contention that whether the detention is sustainable or not, at the outset, we cannot lose sight of the fact that the petitioner-detenu has been detained on account of certain FIRS against him. It is pertinent to mention here that first 4 FIRs relate back to 2010-2015, wherein WP (Crl) No. 200/2022 Page 8 of 27 the petitioner- detenu stands acquitted, already. The said FIRs are distant in time and lack proximity with the detention order.
23. It can validly be held that the impugned order of detention was based on old episodes that had no direct bearing on the actions allegedly detrimental to the security, sovereignty, and integrity of the State.
24. Reliance may be placed on a recent judgment of Co-ordinate Bench of this Court in case titled Khalid Nazir Wagay Vs. Union Territory of J&K & ors., in WP(Crl) No. 132/2022, decided on 09.02.2023, in which this Court has been pleased to hold as under:-
"A perusal of the grounds of detention reveals that the incidents referred therein pertain to the year 2016, 2017 and 2018, that is more than six years, five years and four years respectively prior to the passing of impugned order of detention. There is no reference to any recent incident involving the petitioner in the grounds of detention. Thus, it is clear that the order of detention has been based on past and stale incidents. In fact, the incidents and FIRs which formed basis of the grounds of detention have been the basis of earlier detention of petitioner which was made in terms of order No.19/DMK/PSA/2018 dated 04.10.218, which has been quashed by this Court while disposing of HCP No.363/2018. Thus, using the same grounds and material for passing subsequent detention order without actually mentioning that the petitioner had been previously detained on the basis of this very material not only amounts to an illegality but also shows lack of application of mind on the part of the detaining authority."
25. The Hon'ble Supreme Court in the case titled Sama Aruna v. State of Telengana and & anr. reported as (2018) 12 SCC 150, while holding that the incidents which are said to have taken place long back, cannot form basis for being satisfied that the detenu is going to engage in similar activities, observed as under:
WP (Crl) No. 200/2022 Page 9 of 27
"We are, therefore, satisfied that the aforesaid detention order was passed on grounds which are stale and which could not have been considered as relevant for arriving at the subjective satisfaction that the detenu must be detained. The detention order must be based on a reasonable prognosis of the future behavior of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it."
26. In the light of aforesaid settled legal position, it is obvious that there must be a direct and immediate connection between the detenu's prior behaviour and the behaviour that is harmful to the upkeep of public order. The period between the order of custody and the occurrences mentioned in the grounds of detention is just too large in the current case to assume such a relationship exists. Thus, the order of detention in the peculiar facts and circumstances gets vitiated and cannot be upheld.
27. The execution report, which is a part of the detention record, makes it quite evident that the detenu has not at all received a copy of the police dossier. If we examine the grounds for detention, it cites six FIRs namely FIR Nos. 74/2010, 96/2010, 17/2011, 195/2015, 51/2017 and 85/2020. Respondents were under legal obligation to have provided not only the copy of these FIRs as well as the witness statements that were recorded during examination of these FIRs and other evidence, upon which the petitioner's involvement in the aforementioned FIRs was evident.
WP (Crl) No. 200/2022 Page 10 of 27
28. It is specific case of the petitioner that the Detaining Authority has not provided the copy of the dossier produced before it by SSP Srinagar, with respect to detenu along with copies of the record, material or other connected documents, as a consequence of which, the petitioner has been deprived from making an effective and meaningful representation against his detention before the Competent Authority. On perusal of the record, it is evident that only the copies of first four FIRs were supplied to the detenu and not the rest. The execution report which bears the signatures of the petitioner reveals that the petitioner has received the copy of detention order (01 leaf), Notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (Nil), Copies of FIR, statements of witnesses and other related relevant documents (Nil) (total 05 leaves).
29. Thus, the assertions of the petitioner that he has not been provided the whole supporting material forming the basis of his detention, is borne from the record and it can safely be concluded that the Detaining Authority has not provided the whole material to the detenu with particular reference to dossier and consequently, the petitioner has been deprived of filing effective and meaningful representation before the Advisory Board.
30. Another aspect of the matter which cannot be lost sight of that the respondents have admitted that they have inadvertently reflected in the grounds of detention that the FIR bearing No. 85/2020 has been registered against the detenu but in fact, the said FIR pertains to year 2010 and inadvertently, the year has been mentioned as 2020 instead of 2010. The very admission on the part of the respondents proves total non-application of mind on the part of the respondents in passing the order of detention.
WP (Crl) No. 200/2022 Page 11 of 27
31. Reliance has been placed on a recent judgment of Co-ordinate Bench of this Court in case titled Khalid Nazir Wagay Vs. Union Territory of J&K & ors., in WP(Crl) No. 132/2022, decided on 09.02.2023, it has been held that:-
"8. It is clear from the execution report, which forms part of the detention record, that copy of the police dossier has not at all been supplied to the detenu. If we have a look at the grounds of detention, it bears reference to three FIRs, i.e., FIR Nos.183/2016, 191/2016 and 313/2017. It was incumbent upon respondents to furnish not only the copy of these FIRs but also the statements of witnesses recorded during investigation of these FIRs and other material on the basis of which petitioner‟s involvement in the said FIRs is shown.
9. Thus, contention of the petitioner that whole of the material relied upon by the detaining authority, while framing the grounds of detention has not been supplied to him, appears to be well-founded. Rather the record produced by the respondents corroborates the fact that whole of the material relied upon by the detaining authority and transmitted to him by the concerned sponsoring agency has not been furnished to the detenu in making an effective representation before the Advisory Board, as a result whereof his case has been considered by the Advisory Board in the absence of his representation, as is clear from the detention record. Thus, vital safeguards against arbitrary use of law of preventive detention have been observed in breach by the respondents in this case rendering the impugned order of detention unsustainable in law. The detention authorities inability to provide the whole material makes the detention order unenforceable and unconstitutional."
32. This Court in Gulzar Ahmad Sheikh Vs. Union Territory of J&K WP(Crl) No.139/2021 decided on 21.05.2022, has held as under:-
"Respondents have, therefore, failed to supply the dossier, FIR and other record of the case, based whereupon the order of detention had been passed to detain the detenue. The detenue has thus, been prevented from making an effective and meaningful representation in accordance with law WP (Crl) No. 200/2022 Page 12 of 27 and his rights under Article 22 of the Constitution of India, again lending substance to the challenge to the detention order."
So far as the contours of this requirement and sufficient compliance thereof is concerned, reliance can be placed on the judgment of the Supreme Court reported as AIR 1999 SC 3051 Sophia Gulam Mohd. Bham, vs. State of Maharashtra'. Paras 12, 13, and 14 of the same read as under:
"The detenu was thus informed that he has a right not only to make a representation to the Detaining Authority against the order of detention but also to the State Government and the Central Government.
Now, an effective representation can be made against the order of detention only when copies of the material documents which were considered and relied upon by the Detaining Authority in forming his opinion that the detention of Bham Faisal Gulam Mohammed was necessary, were supplied to him. It is only when he has looked into those documents, read and understood their contents that it can be said that the detenu can make an effective representation to the Detaining Authority, State or Central Government, as laid down in Article 22 (5) of the Constitution which provides as under:
"When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."
The above will show that when a person is detained in pursuance of an order made for preventive detention, he has to be provided the grounds on which the order was made. He has also to be afforded the earliest opportunity of making a representation against that order. Both the requirements have to be complied with by the authorities making the order of detention. These are the rights guaranteed to the person detained by this clause of Article 22 and if any of the rights is violated, in the sense that either the grounds are not communicated or opportunity of making a representation is not afforded at the earliest, the detention order would become bad. The use of the words "as soon as may be" indicate a positive action on the part of the Detaining Authority in supplying the grounds of detention. There should not be any delay in supplying the grounds on which the order of detention was based to the detenu. The use of the words "earliest opportunity" also carries the same philosophy that there should WP (Crl) No. 200/2022 Page 13 of 27 not be any delay in affording an adequate opportunity to the detenu of making a representation against the order of detention. The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenu to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated the detenu and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language."
In view of the above legal position, as stated above and in particular having regard to the fact that an order of preventive detention against a person passed at a time when that person is already in the custody of the Authorities for commission of an act under substantive law, is illegal unless there is possibility of immediate release of the person from custody in the substantive offence and there are compelling reasons for passing of the order of preventive detention. Such a situation is required to be reflected in the order of detention or the grounds of detention formulated by the detaining authority. Non- furnishing of the whole material, on which the detention order has been based, to the detenue has also made him disabled to make an effective and meaningful representation against the detention order, vitiates the same which is not sustainable. The impugned order is, therefore, liable to be quashed on these counts alone."
33. Although the copy of the dossier has not been supplied to the petitioner yet the record has been supplied by the respondents to this Court and a perusal whereof, reveals that the grounds of detention is more or less the replica of the dossier. This clearly proves that the Detaining Authority did not apply its mind afresh while arriving at a subjective satisfaction in forming the detention order but the Detaining Authority has reiterated whatever was written in the dossier with interplay of few words here and there. In that view of the WP (Crl) No. 200/2022 Page 14 of 27 matter, the order of detention cannot sustain the test of law and is liable to be set aside.
34. The Coordinate Bench of this Court in Nazir Ahmad War Vs. UT of J&K and another WP (Crl) No.131/2021, decided on 28.04.2022 has held as under:-
"This Court in the case of Noor-ud-Din Shah v. State of J&K & Ors. 1989 SLJ 1, quashed the detention order as it was found that grounds of detention was reproduction of the dossier supplied to the detaining authority and held that it amounted to non-application of mind. The Court observed:
"I have thoroughly by examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of detention formulated by the latter for the detention of the detenu in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case, he has acted as an agent of the police. It was his legal duty to find out if the allegations levelled by the police against the detenu in the dossier were really going to affect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenu, so as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order in a routine manner being in different to the import of preventive 4 WP (Crl) no.131/2021 detention as or detained in the Act, passing of an order without application of mind goes to the root of its validity, and in that case, the question of going into the genuineness or otherwise of WP (Crl) No. 200/2022 Page 15 of 27 the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act."
From the above settled legal position, it is clear that if grounds of detention and dossier are similar in language, it would tantamount to non-application of mind on the part of detaining authority. As already noted, in the instant case, it is clear from the record that the dossier and the grounds of detention contain almost similar expressions which show that there has been non-application of mind on the part of the detaining authority. The impugned order of detention is, therefore, unsustainable in law on this ground alone.
35. In Icchu Devi Choraria vs Union of India reported as (1980) 4 SCC 531, the Hon'ble Supreme Court has taken the view that documents, statements and other materials referred to or relied upon in the grounds of detention by the detaining authority in arriving at its subjective satisfaction get incorporated and become part of the grounds of detention by reference. The right of the detenu to be supplied, copies of such documents, statements and other materials flow directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention because unless the former right is available the latter cannot be meaningfully. .
36. I am fortified by the view of the Hon'ble Supreme Court in case titled Jai Singh & ors. vs. State of J&K, reported as (AIR 1985 SC 764), which is reproduced as under:
"First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned WP (Crl) No. 200/2022 Page 16 of 27 as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of ...... Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner."
37. As per record, it is evidently clear that the Detaining Authority has not been provided the copies of the FIRs to the detenu especially the copy of FIR No. 85 of 2020 registered in Police Station Safakadal. Although no corrigendum was issued by the respondents to clear that the said FIR pertains to year 2010 and not 2020 nor it has been pleaded while filing the reply by the respondents. It was only when the respondents were confronted by the petitioner's counsel, a stand has been taken by the respondents that inadvertently the year has been shown as 2020 when in fact FIR pertains to year 2010 and the said aspect has neither been borne from the record nor from the pleadings. The specific stand taken by the petitioner that the Detaining Authority has not provided the copy of FIR No. 85 of 2020 to the petitioner, has not been specifically denied by the respondents. The record further reveals that the detenu was already in jail facing the trial of the case in FIR No. 51 of 2017 of Police Station Nowhatta for more than three years as under trial accused. On the other hand, it has been alleged against the petitioner that he has participated in rioting and stone pelting by the Police Station Safakadal. Once the detenu was already in jail and facing trial how could he participated in WP (Crl) No. 200/2022 Page 17 of 27 rioting and stone pelting during that intervening period is not borne from the record which clearly proves that the Detaining Authority has passed the order without application of mind.
38. A specific stand has been taken by the petitioner in ground (c) that the concerned police agency has not apprised the Detaining Authority about the grant of bail to the detenu by the Special Court TADA/POTA and NIA in FIR No. 51 of 2017 and the said ground has not been specifically denied by the respondent. This proves that the Detaining Authority has not shown its awareness regarding the status of the above mentioned cases which vitiates the order of detention being bad in the eye of law. It is well settled that the ground, on which the detenu is granted bail forms an important part of the material and the same is required to be provided to the detenu and the Detaining Authority should be aware of the said development. There is no whisper about the bail order in the grounds of detention while arriving at a subjective satisfaction by the Detaining Authority. In a recent judgment, it was held that the grounds of bail from important factor to decide whether preventive detention of accused is necessary by the Bombay High Court in Alakshit S v. State of Maharashtra & anr. reported as 2022 SCC online Bom 7439:
"13.......The grounds of bail may not perhaps help the proposed detenu and the Authority may possibly find them to be all the more reason for ordering preventive detention of such a person, provided the other criteria is fulfilled. Such is the importance of the grounds of bail and therefore, they are required to be considered by the Detaining Authority while passing the order of detention. This is the law laid down by the Apex Court in the case of Abdul Sathar Ibrahim Manik Vs. Union Of India [1991 AIR 2261], which has been followed by this Court in several of its judgments including the judgment delivered in the case of Ratnamala Mukund Balkhande Vs. State of Maharashtra [2022 All M.R. (Cri) 3106]."WP (Crl) No. 200/2022 Page 18 of 27
39. I am fortified by the judgment of Jammu & Kashmir High Court - Srinagar Bench in Shabir Ahmad Mir vs State of J&K and anr., reported as (2019) SCC Online J&K 882), wherein it was held "Testing the instant case on the touchstone of the law laid down above, the detenu could not have been detained after taking recourse to the provisions of "The Act of 1974", when he was already on bail in the cases, the details whereof have been given hereinbefore. The State could have exercised its right to knock at the doors of a higher forum and seek the reversal of the orders of bail so granted by the competent Court(s). This single infraction knocks the bottom out of the contention raised by the State that the detenu can be detained preventatively when he was released on bail. It cuts at the very root of the State action. The State ought to have taken recourse to the ordinary law of the land"
40. I am fortified with the view taken by this Court in Mohammad Maqbool Beigh Vs. State of J&K & ors., reported as 2007 (I) SLJ 89 wherein it has been held as under:-
"Thus, the authority while passing the detention has to give the compelling circumstances on the basis of which he proceeds to direct preventive detention of the detenu.
Since no compelling reasons have been recorded by the detaining authority the present case, I find the order impugned cannot stand. The petition is, therefore, allowed and detention order is hereby quashed."
41. Thus, from the record, it is manifestly clear that the detenu has not been supplied relevant material forming basis of his detention especially the dossier and other relevant material referred hereinabove and consequently the petitioner has been deprived of his making an effective representation. It goes without saying that the detention is a huge power vested with the Executive and there is a need to keep the power in check by making sure that the constitutional safeguards are not violated and the detenu is given all the rights that are given by the Constitution of India providing the whole material is one WP (Crl) No. 200/2022 Page 19 of 27 of the very essential safeguard that has been provided to the detenu so that the detenu can make an effective representation and no compelling reasons have been reflected in the grounds of detention and impugned order cannot stand on this ground alone.
42. I have gone through minutely the grounds of detention and perusal whereas reveals that the Detaining Authority has shown its wavering mind by stating that the activities of the detenu are prejudicial to the security of the State and in the same breath had said that the activities of the detenu are prejudicial to the maintenance of public order. In Abdul Rashid Lone vs. State of J&K and Ors. reported as 2010 (4) JKJ 554, this Court has held as under:-
"If the petitioner is found disturbing law and order or misusing the bail granted to him the authorities would be at a liberty to get the bail orders cancelled. One doesn‟t know how the detaining authority would have acted if was made aware of the above details." Hence it can be validly said that the state could have exercised its right to seek the reversal of the order by knocking the doors of the higher forum. The state ought to have taken recourse to the ordinary law of the land. It is a well settled position that human life and liberty is of paramount importance. it is incumbent upon the court to look into the decision of executive and make sure that all the constitutional rights are safeguarded. The petitioner detenu had availed bail just few days back and there was no reasonable apprehension of him disturbing the public order. Even if there was an apprehension that the activities of the detenu, if released would be prejudicial to the state security and public order. The detaining authorities did have the recourse to the higher authorities to get the bail cancelled."
43. Another legal question which arises for consideration in the present case is "Whether the concepts of "public order" and "security of state" are distinct and separate and whether they can be used interchangeably?"
"It is worthwhile to mention that, while perusing the grounds of detention prepared by D.M, Srinagar, on the basis of dossier, it is WP (Crl) No. 200/2022 Page 20 of 27 reflected that the activities of the detenu leads to disturbance of the public order as well as maintenance of the security of the Union Territory of J&K. The detaining authority has used both the expressions i.e. disturbance of the public order as well as maintenance of the security in the grounds of detention with a wavering mind and uncertainty without any basis. The detaining authority's opposition to the grounds of detention, demonstrates that they did not carefully evaluate and apply their thoughts while passing the detention order.
With a view to appreciate the aforesaid legal proposition, it would be apt to reproduce the provisions of Public Safety Act which provides as under :
8. Detention of certain persons. -- (1) The Government may--
(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to-
(i) the security of the State or the maintenance of the public order; or
(ii) [Omitted.] (a-1) if satisfied with respect to any person that with a view to preventing him from-
(i) smuggling [timber or liquor]; or
(ii) abetting the smuggling of [timber or liquor]; or
(iii) engaging in transporting or concealing or keeping smuggled timber; or
(iv) dealing the smuggled timber otherwise than by engaging in transporting or concealing or keeping in smuggled timber [or liquor]; or
(v) harbouring persons engaged in smuggling of timber [or liquor] or abetting the smuggling of timber 3[or liquor]; or]
(b) if satisfied with respect of such person who is-- WP (Crl) No. 200/2022 Page 21 of 27
(i) a foreigner within the meaning of the Foreigners Act,
(ii) a person residing in the area of the State under the occupation of Pakistan, that with a view to regulating his continued presence in the State or with a view to making arrangements for his expulsion from the State, it is necessary so to do, make an order directing that such person be detained.
(2) Any of the following officers, namely:--
(i) Divisional Commissioners,
(ii) District Magistrate, may, if satisfied as provided in sub-clauses (i) and (ii) of clause [(a) or (a-1) of sub-section (1), exercise the powers conferred by the said sub- section.
(3) For the purposes of sub-section (1), --
[(a) Omitted.]
(b) "acting in any manner prejudicial to the maintenance of public order" means--
(i) promoting, propagating or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region;
(ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, WP (Crl) No. 200/2022 Page 22 of 27 where the commission of such offences disturbs, or is likely to disturb public order;
[(c)"smuggling" in relation to timber means possessing or carrying of illicit timber and includes any act which will render the timber liable to confiscation under Forest Act, Samvat 1987 or under the Jammu and Kashmir Excise Act, 1958, as the case may be;] [(d)"timber" means timber of Fir, Kail, Chir or Deodar tree whether in logs or cut up in pieces but does not include firewood;] [(e) "Liquor" includes all alcoholic beverages including beer;] [(f) "person" shall not include a citizen of India who has not attained the age of eighteen years for being detained under clauses (a) and (a-1) thereof].
(4) When any order is made under this section by an officer mentioned in sub-section (2), he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the Government.
44. As has been said by the Hon'ble Supreme Court in G. M. Shah vs. State of J&K reported as AIR 1980 SC 494, the expressions "law and order", "Public order" and "security of the State" are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the "security of the State".
45. The abovementioned position was recently reiterated by a coordinate bench of the High Court of Jammu & Kashmir and Ladakh. In the case titled WP (Crl) No. 200/2022 Page 23 of 27 Javid Ahmad Mir V UT of J&K and Anr. WP (Crl) no. 151 of 2021, decided on 28.04.2022, it was held that:
"In the present case, detaining authority has made use of both expressions "prejudicial to maintenance of public order" as well as "prejudicial to security of the State". Impugned detention order, made on the basis of grounds of detention using both expressions by the detaining authority to place the detenu under preventive detention, in view of above discussion and well settled law, is held illegal and consequently impugned order is vitiated."
46. In Dr. Ram Manohar Lohia Vs. State of Bihar and Ors., reported in AIR 1966 SC 740, the Hon'ble Supreme Court has held as under:
""61. Reliance is first placed upon a decision of the Federal Court in Lakhi Narayan Das v. Province of Bihar [1949] F.C.R. 693, where the Court dealing with item 1 of Provincial List, 7th Schedule in the Government of India Act, 1935 which read-
"Public order (but not including the use of His Majesty's naval, military or air forces in aid of the civil power)"
observed that "Public Order" with which that item began was "a most comprehensive term". Reference is also made to Ramesh Thapar v. State of Madras[1950] S.C.R. 594 where this Court dealing with the same subject matter also observed:
"............'Public order' is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established it must be taken that 'public safety' is used as a part of the wider concept of public order and referring to Entry 3 in List III (Concurrent List) of the 7th Schedule of the Constitution which includes the "security of a State" and "maintenance of public order" as distinct topics of legislation, observed -in the field of public order or tranquillity, marking off, may be, roughly, the boundary between those serious and aggravated forms of public disorder -which are calculated to endanger the security of the WP (Crl) No. 200/2022 Page 24 of 27 State and the relatively minor breaches of the peace of a purely local significance, treating for this purpose differences in degree as if they were- differences in kind."-
47. In Mallada K. Sri Ram v. the State of Telangana & ors., reported in 2022 SCC online SC 424, the Hon'ble Apex Court has considered the distinction between "law and order" and "public order" and observed as under:-
"The distinction between a disturbance to law and order and a disturbance to public order has been clearly settled by a Constitution Bench in Ram Manohar Lohia v. State of Bihar. The Court has held that every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large. The Constitution Bench held:
"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 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 disorders or only some of them? 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 if 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 WP (Crl) No. 200/2022 Page 25 of 27 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.
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 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....."
„A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order". In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of, preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law.."
48. Thus, in the light of the aforesaid discussion, it can safely be concluded that the detaining authority has used both the expressions to place WP (Crl) No. 200/2022 Page 26 of 27 the detenu under preventive detention with uncertainty and wavering mind and accordingly, the detention order gets vitiated and held to be illegal. From the record, it appears that the allegations leveled in the grounds of detention are vague, without any supporting material or documents and cannot be the basis for curtailing liberty of an individual.
CONCLUSION
49. Thus, in light of what has been stated hereinabove coupled with the settled legal position, Order No.DMS/PSA/41/2022 dated 11.04.2022 passed by District Magistrate, Srinagar is hereby quashed and the detenu namely Peerzada Mohammad Waseem S/o Peerzada Shabir Ahmad R/o Wanganpora Nawakadal, Srinagar, is ordered to be set at liberty forthwith if not required in any other case.
50. Registry is directed to hand over the record of the case to the learned counsel for the respondents against proper receipt.
(WASIM SADIQ NARGAL) JUDGE Jammu:
13.04.2023 Ram Murti Whether the judgment is reportable ? Yes/No Whether the judgment is speaking ? Yes/No WP (Crl) No. 200/2022 Page 27 of 27