Point of Law: Detention order - Order impugned cannot stand as it is based on grounds of detention, which is only verbatim copy of police dossier.

JUDGMENT :

1. District Magistrate, Kathua–respondent no.2 (for brevity “detaining authority”), has, by Order No. PSA/104 dated 16.10.2020, placed Balbir Chand S/o Rana R/o Chack Drab Khan, Tehsil and District Kathua (for short “detenue”) under preventive detention, with a view to prevent him from indulging in the criminal activities which are prejudicial and detrimental to the maintenance of public order. It is this order, of which petitioner is aggrieved and throws challenge thereto on the grounds tailored in petition on hand.

2. It is averred in the petition that the basis of detention of the petitioner is the involvement of the petitioner in some FIRs and in all the FIRs, the petitioner is either bailed out or the matter is disposed of by the Court and the detaining authority has not taken into account the order of bail passed in the said FIRs. It is further stated that the detenue has been detained by the respondent No. 3 without providing any sufficient material, i.e., the copy of the FIRs, statement of witnesses, list of witnesses, statement before Judicial Magistrate and other relevant materials which is mandatory as per the provisions of J&K Public Safety Act, 1978.

3. It is stated that the grounds on which the detention order has been issued are false, frivolous and baseless and are influenced by the local politicians on the basis of political rivalry and the recommendation is an outcome of recent Panchayat elections. It is further stated that the petitioner is working as a plumber and was working hard to meet day to day needs of his family and it has become very difficult for the whole family to cope up with the prevailing situation.

4. It is averred in the petition that the detention order does not specify the period of detention of the petitioner and the grounds of detention only states that the detention is for the maximum period, which is impermissible under the law governing the preventive detention. It is also averred that and the detaining authority cannot be permitted to fix the period of detention on its own whims and fancies, discretion. It is stated that the impugned detention order has not been approved by the Advisory Board under the Public Safety Act (PSA) and the detenue has right to lead evidence in rebuttal before the Advisory Board. It is further stated that the District Magistrate, Kathua has failed to appreciate that the FIR which the District Magistrate is mentioning in the detention order does not fit into the four corners of the Section 8 of the Public Safety Act.

5. Counter affidavit has been filed by respondent No. 4, stating therein that the petitioner has resorted to suppression of material facts in the writ petition and is misleading this Court to solicit orders. It is stated that the petitioner has been detained by the District Magistrate, Kathua due to his involvement in the commission of organized crime/manufacturing and smuggling of illicit liquor leading to spread of alcohol addiction among the general public, especially youth of the area and if the petitioner is left free then he may prove highly prejudicial to the maintenance of the public order and safety of the people and prays for dismissal of the present petition.

6. Heard learned counsel for parties and perused the record.

7. The impugned order of detention, on its plain reading, reflects that it has been issued by District Magistrate, Kathua (respondent no.2 herein) in exercise of powers conferred under Section 8 of J&K Public Safety Act, 1978. It is germane to say here that Subsection (1) of Section 8 of the Act provides that the Government may, if satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to the security of the State or maintenance of public order, make an order directing that such person be detained. Sub-section (2) of Section 8 provides that Divisional Commissioner and/or District Magistrate may exercise the powers conferred by Sub-section (1). When counter affidavi