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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
RAHUL BHARTI, J.
Simranjot Singh, S/o. Late Daljeet Singh – Petitioner
Versus
Union Territory of Jammu and Kashmir, through Commissioner-cum-Secretary to the Government, Home Department and Ors. – Respondents
HCP No. 49 of 2023, CM No. 5273 of 2023
Decided On : 07-05-2024
HABEAS CORPUS - Preventive Detention - Jammu and Kashmir Public Safety Act, 1978 - Section 8(1)(a), Section 8(4) - Section 307/341/147 IPC, Section 4/25 Arms Act - Section 8(1)(a), Section 8(4) - The court discussed the grounds of detention, the petitioner's criminal history, the process of approval and confirmation of the preventive detention, and the lack of response to the petitioner's representation. The court emphasized the distinction between law and order and public order, and the need to consider the impact on the community in cases of preventive detention.
Fact of the Case:
The petitioner sought a writ of habeas corpus challenging his preventive detention under the Jammu and Kashmir Public Safety Act, 1978. The petitioner alleged that his preventive detention was unwarranted and misconceived, and that the material cited for his detention was not supplied to him for effective representation.
Finding of the Court:
The court found that the preventive detention was vitiated due to the failure to respond to the petitioner's representation, and quashed the detention order. The court directed the restoration of the petitioner's personal liberty unless he was required under any other legal custody in connection with pending criminal cases.
Issues: The issues included the legality of the preventive detention under the Jammu and Kashmir Public Safety Act, 1978, the sufficiency of the grounds for detention, and the lack of response to the petitioner's representation.
Ratio Decidendi: The court emphasized the distinction between law and order and public order, and highlighted the impact on the community as a factor in cases of preventive detention. The failure to respond to the petitioner's representation rendered the preventive detention vitiated with illegality.
Final Decision: The petition was allowed, and the impugned detention order was quashed. The petitioner was directed to be restored to his personal liberty unless required under any other legal custody. The prosecution was not prejudiced in approaching the concerned criminal courts for seeking recall/revocation of the bail granted in favor of the petitioner.
JUDGMENT :
1. Heard learned counsel for the parties, perused the writ pleadings and the record therewith and also perused the detention record pertaining to the petitioner.
2. Through the medium of this writ petition, the petitioner is seeking a writ of habeas corpus with respect to his preventive detention custody which came to take place by virtue of an Order No. 12 of 2023 dated 25.07.2023 passed by the respondent No. 2-District Magistrate Jammu, acting under Jammu and Kashmir Public Safety Act, 1978, and resulted in detainment of the petitioner.
3. The petitioner came forward with the present writ petition instituted on 31.08.2023 terming his preventive detention as illegal and is, therefore, seeking it to be declared as such and consequently to earn restoration of his personal liberty.
4. A case for seeking preventive detention of the petitioner under Jammu and Kashmir Public Safety Act, 1978 was processed and put up by the respondent No. 3-Senior Superintendent of Police (SSP), Jammu when he, by a letter No. CRB/Dossier/2023/24/DPO dated 22.07.2023, submitted a dossier comprising of 164 leaves to the respondent No. 2-District Magistrate, Jammu thereby presenting the material which, in the estimate of the respondent No. 3-Senior Superintendent of Police (SSP), Jammu, made a good enough basis for seeking the preventive detention of the petitioner in order to prevent his activities being prejudicial to the maintenance of public order.
5. In the dossier, the petitioner came to be introduced and referred as a hard core criminal, desperate character, a habitual indulgent in acts of violence such as attempt to murder, extortion, stabbing, rioting, snatching, possessing illegal arms, burglary etc and also engaged in narcotic drugs and psychotropic substances and the distribution thereof by operating through his network.
6. The petitioner came to be referred as a chronic criminal of the area having created a fear of insecurity amongst the inhabitants of the area. In this regard, the petitioner’s repeated involvement in criminal cases resulting in registration of FIRs was disclosed which are reproduced hereunder :
(ii) FIR No. 115/2014 u/s 451/307/34 RPC and 4/25 Arms Act of Police Station, Satwari.
(iii) FIR No. 157/2014 u/s 341/323/34/324/307 RPC and 4/25 Arms Act of Police Station, Satwari.
(iv) FIR No. 223/2016 u/s 8/21/22/29 NDPS Act and 3/25/4/25 Arms Act of Police Station, Satwari.
(v) FIR No. 89/2018 u/s 341/323 RPC and 4/25 Arms Act of Police Station, Satwari.
(vi) FIR No. 89/2022 u/s 307/326/120-13/201 IPC and 4/25 Arms Act of Police Station, Poonch.
(vii) FIR No. 79/2022 u/s 436/452/380/147/427 IPC and 4/25 Arms Act of Police Station, Gangyal.
(viii) FIR No. 129/2023 u/s 307/341/147 IPC and 4/25 Arms Act of Police Station, Satwari.
7. By reference to the last FIR No. 129/2023 registered against the petitioner for alleged commission of offences under Sections 307/341/147 of the Indian Penal Code and 4/25 of the Arms Act, 1959 with the Police Station, Satwari, the petitioner was mentioned to be in a state of arrest and his release on bail was anticipated to be the precipitating point for the district police to seek the preventive detention of the petitioner lest the petitioner ventures for next crime commission.
8. Acting upon the said material so served through the medium of the dossier, the respondent No. 2-District Magistrate, Jammu came to formulate the grounds of detention and drew a subjective satisfaction therefrom to hold that the petitioner’s personal liberty was prejudicial to the maintenance of public order and, therefore, warranted his preventive detention under Section 8(1) (a) of the Jammu and Kashmir Public Safety Act, 1978 and thus, ordered his arrest and detention to be lodged in Central Jail, Kot Bhalwal, Jammu.
9. In the grounds of detention, the respondent No. 2-District Magistrate, Jammu came to refer all the FIRs cited
The distinction between law and order and public order is crucial in cases of preventive detention, and the impact on the community must be considered. The failure to respond to the petitioner's repr....
Preventive detention under the J&K Public Safety Act requires sufficient grounds related to public order; mere allegations without current relevance do not justify detention.
Preventive detention must be based on immediate threats to public order, not merely on past criminal behavior, and should not bypass ordinary criminal law.
Preventive detention under the Jammu & Kashmir Public Safety Act must be justified by current threats to public order, not merely by past criminal activities.
Preventive detention under the Jammu & Kashmir Public Safety Act was found illegal due to lack of substantive grounds and procedural violations, emphasizing the protection of personal liberty.
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.
Preventive detention must be justified by clear grounds and cannot serve punitive purposes; failure to differentiate factual basis renders detention illegal.
Preventive detention under the Jammu & Kashmir Public Safety Act must be justified by current threats to public order, not merely past criminal behavior.
Preventive detention orders must demonstrate awareness of the detenue's custody status and cannot conflate grounds of public order and security of the State; failure to do so invalidates the order.
Preventive detention under the Jammu and Kashmir Public Safety Act requires the detaining authority to provide grounds for detention and adhere to procedural safeguards, but the subjective satisfacti....
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