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In The High Court of Jammu and Kashmir and Ladakh at Jammu
Rajnesh Oswal, J.
Kamaljeet Singh – Appellant
Versus
UT of J&K and Others – Respondent
WP (Crl) No.64/2021(O&M)
Decided on : 6-7-2022
Jammu and Kashmir Public Safety Act, 1988 – Section 8 – Preventive detention – There is no allegation that petitioner at any point of time was involved in any stabbing incident – There are no allegations that petitioner was involved in illicit dealing of drugs – In FIRs, allegations are with regard to possession of contraband and there is nothing on record that petitioner was selling the contraband to anyone – Allegations may amount to law and order issue but in no manner can be said to have disturbed public order – Order of detention suffers from vice of non-application of mind and is arbitrary in nature – Detaining authority was required to apply its mind independently with regard to material placed before it so as to derive satisfaction that it has become necessary to detain petitioner – But same has not been done in instant case – Order of detention quashed – Writ Petition allowed. (Paras 7, 8, 12, 15, 16 and 17)
Judgment :
Through the medium of this writ petition, the petitioner has questioned the detention order No. 12 of 2021 dated 06.10.2021 passed by the District Magistrate, Jammu-respondent No. 3, whereby the petitioner has been detained under the Public Safety Act.
2. The petitioner has assailed the aforesaid detention order on the following grounds:—
(ii) That the detention order, dossier and other connected material has not been read over and explained to the petitioner in the language which the petitioner understands.
(iii) That the petitioner has not been informed by the Detaining Authority of his right to make representation to the detaining authority itself in addition to his right to make representation against his detention to the Government.
(iv) That the Additional Sessions Judge, Jammu has rejected the remand application of the petitioner, therefore, it is apparent that the petitioner has been falsely implicated in the said case.
3. Counter affidavit has been filed by the respondent Nos. 3 & 4. Respondent No. 3 in his reply has stated that the Sr. Superintendent of Police Jammu vide its dossier dated 30.09.2021 has brought to his notice that the petitioner is a hard-core criminal and his criminal record reveals his addiction to heinous crimes of stabbing, drug dealing, buying and selling illegal liquor etc. The activities of the petitioner are very prejudicial to the maintenance of public order and warrants immediate preventive measures. It is also stated that the petitioner is a history sheeter of Police Station, Gandhi Nagar, whose history sheet was opened on 25.11.2019 and thereafter, he was under constant surveillance, as he has close links with other notorious criminals. It is further stated that FIR No. 200/2017 under Section 8/21/22 of NDPS Act at Police Station, Gandhi Nagar, Jammu, FIR No. 124/2019 under section 8/21/22/29 NDPS Act at Police Station, Gangyal, Jammu, FIR No. 35/2021 under section 188 IPC at Police Station, Gandhi Nagar, Jammu, FIR No. 60/2021 under section 8/21 NDPS Act, 48-A, 48F/Excise Act 3/25 Arms Act, 51 DMC Act at Police Station, Miran Sahib Jammu and FIR No. 171/2021 under section 188, 269, 270 of IPC, 48-A/50 Excise Act at Police Station, Gandhi Nagar, Jammu have been registered against the petitioner. It was also stated that ordinary law has not proved adequate in order to deter the petitioner from indulging in repeated illegal acts, as such, detention order was passed by the respondent No. 3. It is also stated that detention order was executed on 07.10.2021.The detention order and grounds of detention were read over to the petitioner by the Executing Agency concerned in English, Hindi and Dogri languages. It is also stated that the material on the basis of which, the grounds of detention were formed by the respondent No. 3, was also supplied to the petitioner. To the same extent, reply has been filed by the respondent No. 4.
4. Mr. M. I. Khan, learned counsel for the petitioner vehemently submitted that a bare perusal of the order of detention would reveal that the respondent No. 3 has not applied his mind as he has mentioned that the petitioner is involved in crimes of stabbing and drug dealing. He further submitted that there is no allegation of stabbing against the petitioner. He further argued that the petitioner could not have been detained on the pretext of maintenance of public order as the FIRs registered against the petitioner, nowhere demonstrate that the petitioner at any point of time has disturbed the public order.
5. On the other hand, Mr. Amit Gupta, learned AAG vehemently argued that the petitioner is a habitual offender and all the constitutional and procedural safeguards have been followed by the respondents while passing and executing the detention o
: Preventive detention – Mere disturbance of law and order leading to disorder is not necessarily sufficient for action under Preventive Detention Laws.
The necessity to place all material, including orders of granting bail, before the detaining authority to enable them to derive subjective satisfaction for the detention.
Preventive detention under the Jammu & Kashmir Public Safety Act must be justified by current threats to public order, not merely by past criminal activities.
The central legal point established in the judgment is the distinction between law and order and public order, emphasizing that the activities must have the potential to disturb the public peace and ....
Preventive detention requires specific grounds and independent application of mind by the detaining authority; mere reproduction of police dossiers is insufficient.
Preventive detention under the Jammu & Kashmir Public Safety Act must be justified by a clear threat to public order, not merely based on past criminal activities.
The detenue's right to make an effective representation against preventive detention is guaranteed under Article 22(5) of the Constitution of India. Failure to supply the material forming the basis o....
The court emphasized the narrow limits of preventive detention and the necessity to ensure that the facts directly and inevitably lead to harm, danger, or alarm to the public or any section thereof a....
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