Jammu & Kashmir High Court
Supreet Singh Alias Raja vs Ut Of J&K And Others on 26 April, 2023
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 06.04.2023
Pronounced on: 26.04.2023
WP (Crl) No. 85/2022
CM No. 7348/2022
CrlM No. 427/2023
Supreet Singh Alias Raja .....Appellant(s)/Petitioner(s)
Through: Mr. K. S. Johal, Sr. Advocate with
Q
Mr. Supreet Singh Johal, Advocate
Vs
UT of J&K and others ..... Respondent(s)
Through: Mr. Pawan Dev Singh, Dy. AG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. The petitioner, who has been detained by virtue of an order bearing No. 18 of 2022 dated 22.11.2022 issued by respondent No. 2 under Section 8(1) (a) of the Jammu and Kashmir Public Safety Act, 1978, has impugned the said detention order through the medium of the present writ petition.
2. In the petition filed through his father, the petitioner has mentioned details of the documents furnished to him i.e. the order of detention dated 22.11.2022, the communication dated 22.11.2022 issued by the respondent No. 2 to the respondent No.1, the communication dated 22.11.2022 issued by the respondent No. 2 to the petitioner and the Dossier dated 07.11.2022. It is stated that the detaining authority has failed to take into consideration the fact that in all the FIRs registered against the petitioner, he has been enlarged on bail and all the FIRs except one are stale in nature. It is further stated that the order of 2 WP(Crl) No. 85/2022 detention was not read over and explained to the petitioner in the language that petitioner understands. It is also stated that the order impugned suffers from non-application of mind as no awareness has been shown by the detaining authority to the bail granted to the petitioner and also that the facts narrated, did not make any case for acting in any manner prejudicial to the maintenance of public order. The petitioner has also placed on record the copy of the judgment dated 31.03.2022 passed by the Co-ordinate Bench of this Court, wherein the order of detention bearing No. 6 of 2021 dated 05.05.2021 passed by the District Magistrate, Jammu against the petitioner was quashed.
3. The counter affidavit stands filed, wherein it has been stated that the petitioner has been detained by virtue of order impugned, after the respondent No. 3 submitted the dossier dated 07.11.2022, in order to prevent the petitioner from indulging in the criminal activities prejudicial to the maintenance of the Public Order. The detention order along with grounds of detention and other material relied upon by the detaining authority was provided to the petitioner. The order of detention was executed on 23.11.2022 and the documents were read over and explained to the detenue in a language Dogri/Hindi, which is fully understood by the detenue. The details of eight FIRs have been mentioned in the counter-affidavit and taking into consideration the alleged illegal activities of the petitioner, he was ordered to be detained.
4. Mr. K. S. Johal, learned senior counsel for the petitioner argued that the order of detention has been issued in a mechanical manner and the 3 WP(Crl) No. 85/2022 detaining authority has not shown its awareness about the issuance of earlier detention order that was quashed by this Court vide its judgment dated 31.03.2022. Mr. Johal further argued that earlier detention order issued on the basis of seven FIRs registered against the petitioner was quashed by the court and the order impugned could not have been issued by the detaining authority on the basis of FIR No. 349/2022, as allegations levelled in the said FIR do not fall within the realm of "activities prejudicial to the maintenance of public order", as defined by Section 8(3) (b) of the Act.
5. Mr. Pawan Dev Singh, learned Dy. AG vehemently argued that the petitioner is a habitual offender and despite his release on bail in all the cases and also after quashing of earlier detention order, the petitioner has not mended his behaviour and continued to indulge in illegal activities, which necessitated the detaining authority to issue the order of detention against the petitioner.
6. Heard and perused the record.
7. A perusal of the record reveals that the following FIRs have been registered against the petitioner:-
(a) FIR No. 64/2014 u/s 307/323/34 RPC, Police Station, Peer Mitha, Jammu.
(b) FIR No. 210/2015 u/s 307/341/34 RPC, Police Station, Gandhi Nagar, Jammu.
(c) FIR No. 04/2017 u/s 452/367/511/147/148 RPC, 3/25 Arms Act, Police Station, Bahu Fort, Jammu.
(d) FIR No. 30/2017 u/s 307/323/341/34 RPC, 3/25 Arms Act, Police Station, Pacca Danga, Jammu.
(e) FIR No. 31/2018 u/s 307 RPC, 3/25 Arms Act, Police Station, Gandhi Nagar, Jammu.
(f) FIR No. 208/2018 u/s 382/401/120-B RPC, 3/25 Arms Act, Police Station, Bahu Fort, Jammu.
(g) FIR No. 91/2021 u/s 307/120-B IPC, 3/25 Arms Act, Police Station, Gandhi Nagar, Jammu.4 WP(Crl) No. 85/2022
(h) FIR No. 349/2022 u/s 452/427/147 IPC, 3/25 Arms Act, Police Station, Domana, Jammu.
8. The respondents have not disputed the issuance of earlier detention order No. 6 of 2021 dated 05.05.2021 and its subsequent quashing by the Co-ordinate Bench of this Court vide judgment dated 31.03.2022. A perusal of the record further reveals that the petitioner was handed over the detention order, notice of detention, grounds of detention, dossier of detention, copies of FIR and other documents relied upon by the detaining authority. At the time of execution of the detention order by Inspector, namely, Tilak Raj on 23.11.2022, the petitioner has signed the receipt of grounds of detention and other relevant record. The petitioner has also signed the execution report, as such, the petitioner was handed over all the documents and further the documents were read over to the petitioner by Inspector-Tilak Raj in Dogri/Hindi language. Therefore, there is no force in the contention of the petitioner that the documents relied upon the detaining authority while issuing the order of detention were not explained and read over to the petitioner in a language, which he understands.
9. Further from the perusal of the dossier and the grounds of detention it is revealed that there is no whisper in both the dossier as well as grounds of detention, that earlier also the petitioner was detained under the Act and the said order of detention was quashed by the Co- ordinate Bench of this Court vide its judgment dated 31.03.2022. The sponsoring authority is under an obligation to place before the detaining authority all the relevant and vital material, so as to enable the detaining authority to record its subjective satisfaction that 5 WP(Crl) No. 85/2022 detention of the detenue is necessary for the purpose of preventing the detenue from indulging in illegal activities. The same has not been done by the sponsoring authority and as such, this Court is of the considered view that the absence of placing the whole of the record pertaining to the petitioner before the detaining authority i.e. respondent No. 2, would vitiate the subjective satisfaction recorded by the detaining authority to detain the petitioner. In "Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat, (1979) 1 SCC 222"it has been held by the Hon'ble Apex Court that "It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order."
10. Besides, this Court finds that the detaining authority has relied upon 8 FIRs in the grounds of detention out of which 7 FIRs were taken note of by the detaining authority for the purpose of issuance of the earlier order of detention dated 05.05.2021. It is further borne out from the record that after the earlier detention order was quashed on 31.03.2022, the petitioner was found involved in another FIR No. 349/2022 under Sections 452/427/147 IPC, 3/25 Arms Act, which was registered with Police Station, Domana, Jammu. The petitioner could still have been detained after the quashing of earlier order of detention provided his activities fell within the parameters of the activities considered prejudicial to the maintenance of public order. A perusal of 6 WP(Crl) No. 85/2022 the said FIR reveals that the same was registered on the basis of DD extract No. 12 dated 07.10.2022, wherein it was stated that on 06.10.2022, one lady, namely, Gurpreet Kour W/o Gurpreet Singh R/o Swaran Colony Lane No. 01 Trilok Pur was alone at her house and about 12:00 PM, someone knocked the door of her house. She woke up and saw seven persons crossing the boundary wall and entering in her house and tried to break cameras and doors. The petitioner was having pistol but three persons could not be identified. When she told them that she would call the Police, they fled away.
11. Now, it is to be seen as to whether on the basis of FIR mentioned above, it can be said that the detention of the petitioner was necessary for maintenance of public order. Under section 8 (1) of the Jammu and Kashmir Public Safety Act, the government may detain any person if the government is satisfied that the detention is necessary with a view to prevent such person from acting in any manner prejudicial to the maintenance of public order. Section 8(3)(b) of the Act defines the activities those are considered as prejudicial to the maintenance of public order and the same is reproduced as under:
(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 the ground of religion, race, caste, community, or region;
(ii) attempting to commit, or committing, or instigating, inciting, provoking or otherwise abetting the commission of mischief within the meaning of section 425 of the Indian Penal Code where the commission of such mischief disturbs or is likely to disturb public order;
(iii) 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 7 WP(Crl) No. 85/2022 term extending to 7 years or more where the commission of such offence disturbs or is likely to disturb public order;
12. The perusal of the grounds of detention reveals that in the said FIR, the allegations against the petitioner are with regard to the commission of offences those do not fall within the realm of "public order" as defined by section 8(3)(b) of the Act as there are no allegations against the petitioner regarding his activities affecting public at large. The allegations may amount to law and order issue but in no manner can be said to have disturbed the public order. In Mallada K Sri Ram v. State of Telangana, 2022 SCC OnLine SC 424, Apex Court has considered the distinction between "law and order" and "public order" and observed as under:
"12. 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:
"51. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the 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 8 WP(Crl) No. 85/2022 action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.
52. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric 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."
(emphasis supplied)
13. It is also found that the grounds of detention are the verbatim reproduction of the Dossier submitted by the respondent No. 3 to the respondent No. 2 except with some cosmetic changes. The detaining authority was required to apply its mind independently with regard to the material placed before it so as to derive subjective satisfaction that it has become necessary to detain the petitioner. The order of detention requires to be quashed on this ground as well. Reliance is placed upon the decision of Apex Court in case titled "Jai Singh v. State of J & K, reported in (1985) 1 SCC 561" and the relevant portion 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 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 9 WP(Crl) No. 85/2022 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 greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner."
14. In view of the above, this petition is allowed and the order bearing No. 18 of 2022 dated 22.11.2022 issued by respondent No. 2 is quashed. The petitioner (detenue) be set free from the preventive custody, provided his custody is not required in any other case.
(RAJNESH OSWAL) JUDGE Jammu 26.04.2023 Neha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No.