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JAMMU AND KASHMIR HIGH COURT BENCH AT JAMMU
Rajnesh Oswal, J.
Ravinder Kumar Gupta – Appellant
Versus
Union Territory of Jammu And Kashmir & Ors. – Respondents
WP(Crl) No. 21 of 2022
Decided On : 21-09-2022
Public Safety Act - Detention Order - Jammu and Kashmir Public Safety Act, 1978 - 8(1)(a)
Fact of the Case:
The petitioner challenged a detention order issued under section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978. The petitioner was already in custody in connection with an FIR when the detention order was issued. The petitioner argued that the order suffered from non-application of mind and that the activities did not constitute a breach of public order. The respondents contended that the petitioner's activities were prejudicial to public order, citing numerous criminal activities over the years.
Finding of the Court:
The court found that the detention order suffered from non-application of mind and that the activities did not constitute a breach of public order. The court also noted that the detaining authority was not aware of the petitioner's custody at the time of issuing the detention order. The court allowed the petition and quashed the detention order.
Issues: The issues included the validity of the detention order, the nature of the petitioner's activities, and the awareness of the detaining authority regarding the petitioner's custody.
Ratio Decidendi: The court held that the detention order suffered from non-application of mind and that the activities did not constitute a breach of public order. The court also emphasized the importance of the detaining authority's awareness of the petitioner's custody when issuing the detention order.
Final Decision: The petition was allowed, and the detention order was quashed. The petitioner was to be set free from preventive custody, provided his custody was not required in any other case.
JUDGMENT
1. In this writ petition filed through his son, the petitioner has questioned the detention order No. 06/2022 dated 25.05.2022 issued by respondent No. 2, whereby the petitioner has been detained under section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act).
2. It is stated that on 18.05.2022, an FIR No. 53/2022 for commission of offences under section 420, 467, 468, 504 and 506 IPC was registered by the Police of Police Station, Gangyal, Jammu and the petitioner was arrested in connection with the said FIR. The petitioner filed a bail application, that was opposed by the Police and the same was rejected on 25.05.2022. On 26.05.2022 after the expiry of seven days Police remand, the petitioner was produced before the concerned Magistrate and at that time, the detention order dated 25.05.2022 passed by respondent No. 2 was brought to the notice of the learned Magistrate as well as the petitioner. The petitioner was taken to Kot Bhalwal Jail on 26.05.2022 and a copy of the detention order along with communication dated 25.05.2022 was supplied to the petitioner informing him about his detention order and grounds of detention and dossier dated 21.05.2022 were also furnished to the petitioner.
3. The petitioner has assailed the aforesaid detention order on the following grounds:
(a) That the activities allegedly considered to be prejudicial to the maintenance of public order by respondent No. 2 do not fall within the purview of section 8(3) (b) of the Act.
(b) That the order impugned is a classic example of non-application of mind by respondent No. 2 as the grounds of detention are verbatim reproduction of the contents of the dossier dated 21.05.2022.
(c) That the order of detention has been issued oblivious to the fact that the petitioner was already in custody w.e.f 19.05.2022 in FIR No. 53/2022 and this fact has not been adverted to by respondent No. 2 while issuing the order of detention.
(d) That the non application of the mind by the District Magistrate is further substantiated by the fact that in three FIRs bearing Nos. 95/2006, 103/2006 and 52/2012, the petitioner has been discharged vide orders dated 03.12.2008, 17.12.2011 and 11.12.2018 respectively, by the trial courts.
(e) That at best the grounds in the detention order can be said to constitute an apprehension of breach of law and order and by no stretch of imagination constitute apprehension of breach of public order.
4. Counter affidavit has been filed by the respondents, in which it has been stated that none of the constitutional, statutory or any other legal right of the petitioner has been violated by the issuance of order of detention as the same was issued after taking into consideration the prejudicial activities of the petitioner, so as to deter him from acting or indulging is such activities. It is stated that the detenue is involved in numerous criminal activities, which are considered prejudicial to maintenance of public order as 21 FIRs have been registered against the petitioner, right from 2006 to 2022, details of which are as under:
| 1. | Case FIR No. 27/2002 U/s 447, 379 RPC of P/S Gangyal |
| 2. | Case FIR No. 61/2004 U/s 447 and 147 RPC of P/S Gangyal |
| 3. | Case FIR No. 95/2006 U/s 420 and 120-B RPC of P/S Gangyal |
| 4. | Case FIR No. 101/2006 U/s 420 RPC of P/S Gangyal |
| 5. | Case FIR No. 103/2006 U/s 420 RPC of P/S Gangyal |
| 6. | Case FIR No. 09/2007 U/s 420 and 447 RPC of P/S Gangyal |
| 7. | Case FIR No. 24/2007 U/s 420 RPC of P/S Gangyal |
| 8. | Case FIR No. 53/2005 U/s 341, 323 and 385 RPC of P/S Channi Himmat |
| 9. | Case FIR No. 57/2006 U/s 353, 447-A and 34 RPC of P/S Channi Himmat |
| 10. | Case FIR No. 09/2007 U/s 467, 468, 471 and 447 RPC of P/S Channi Himmat |
| 11. | Case FIR No. 128/2005 U/s 405 and 446 RPC and 3/25 Arms Act of P/S Bahu Fort |
| 12. | Case FIR No. 163/201 |
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 – Mere disturbance of law and order leading to disorder is not necessarily sufficient for action under Preventive Detention Laws.
The detention order must be supported by material showing a threat to public order and must consider the release on bail in such cases.
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 must be based on substantial evidence showing a threat to public order, not merely on the existence of criminal charges.
Preventive detention must demonstrate a clear threat to public order, not merely rely on criminal charges.
The main legal point established in the judgment is that the detention order under the Gujarat Prevention of Anti Social Activities Act, 1985 should be based on a genuine threat to public order, and ....
The detention order must be based on legal and valid subjective satisfaction, considering all vital facts, and should not be a substitute for the ordinary law.
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