Back
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
RAHUL BHARTI, J.
Imran Ali S/o Sadit Ali - Appellant
Versus
The Union Territory of Jammu & Kashmir, through Principal Secretary (Home) – Respondent
HCP No. 18 of 2024
Decided on : 06-08-2024
(A) Jammu & Kashmir Public Safety Act, 1978 - Preventive detention - Article 226 of the Constitution of India - The petitioner challenged his preventive detention under the Act, arguing that the grounds cited did not justify such action. The court found that the FIRs referenced did not relate to public order, emphasizing that preventive detention cannot substitute the normal criminal procedure. (Paras 11, 13, 18)
(B) Preventive Detention - The court reiterated that preventive detention is not punitive but preventive, and must be based on current threats to public order, not stale incidents. (Paras 15, 16)
Facts of the case:
The petitioner was detained under the Jammu & Kashmir Public Safety Act based on multiple FIRs, which the authorities claimed indicated a threat to public order. However, the court found that these FIRs did not substantiate the need for preventive detention.
Findings of Court:
The court held the preventive detention order to be unwarranted and illegal, emphasizing that the normal criminal law should be applied instead.
Issues: The main issues were whether the grounds for preventive detention were valid and if the FIRs cited were sufficient to justify such detention.
Ratio Decidendi: The court ruled that preventive detention must be based on a clear and present danger to public order, and not merely on past criminal behavior. The court emphasized the need for a proper legal framework to address habitual offenders through the Code of Criminal Procedure.
Result: The preventive detention order was set aside, and the petitioner was directed to be restored to his personal liberty.
JUDGMENT :
01. Heard Mr. Muzaffar Iqbal Khan, learned counsel for the petitioner and Mr. Rajesh Thappa, learned AAG for the respondents. Perused the writ pleadings, the documents therewith as also the detention record produced.
02. The petitioner, acting through his wife Khushboo Kouser, has come to petition this Court under article 226 of the Constitution of India on 12.02.2024 seeking a writ of habeas corpus with respect to the preventive detention of the petitioner effected under the Jammu & Kashmir Public Safety Act, 1978 by virtue of an order passed by the District Magistrate, Rajouri. Although in the petition instead of being referred as District Magistrate it is referred as Deputy Commissioner, Rajouri being the respondent No. 2.
03. A case for preventive detention of the petitioner came to be generated by Sr. Superintendent of Police (SSP), Rajouri by virtue of communication No.PA/PSA/2023/11532-35/C dated 17.11.2023 thereby submitting a dossier with respect to the petitioner on the basis of which the District Police Rajouri reckoned the activities of the petitioner being criminal and anti- social warranting his preventive detention to be the only mode of checking him from further indulging in the objectionable activities so as to ensure maintenance of public order.
04. The respondent No. 2 – Deputy Commissioner, Rajouri at his end by reference to the dossier by the Sr. Superintendent of Police (SSP), Rajouri came to formulate the grounds of detention for drawing a subjective satisfaction therefrom and came to pass the preventive detention Order No. DMR/INDEX/25 of 2023 dated 05.12.2023 (hereinafter to be referred as “the detention order”) directing the preventive detention and detainment of the petitioner in order to prevent him from acting in any manner prejudicial to the maintenance of the public order. The petitioner was directed to be lodged upon detainment in the District Jail, Dhangri.
05. In the grounds of detention formulating the basis for passing the detention order, the respondent No. 2 – Deputy Commissioner, Rajouri came to held the petitioner to be a serious threat to the safety and security of the lives and property of the people, having not changed his behaviour despite number of FIRs registered against him thereby showing that the normal law of the land has proved to be ineffective to deter him from indulging in repeated criminal/anti-social activities, therefore, the need of the hour was felt by the respondent No. 2 – Deputy Commissioner, Rajouri to let the petitioner suffer preventive detention under the Jammu & Kashmir Public Safety Act, 1978 so as to prevent him from repeatedly indulging in criminal/anti-social activities. In generating this opinion with respect to the petitioner, the respondent No. 2 – Deputy Commissioner, Rajouri came to refer the following FIRs:-
a) FIR No.480/2016 u/s 279/337 RPC P/s Rajouri.
b) FIR No.536/2019 u/s 307/452/336/323/147/148/149 RPC P/s Rajouri.
c) FIR No. 684/2019 u/s 353/224/RPC P/s Rajouri.
d) FIR No. 513/2023 u/s 354-D/506 IPC P/s Rajouri.
e) FIR No.516/2023 u/s 307/353/332/147/336/504/506, 04/25 IAA of P/s Rajouri.
06. Pursuant to the preventive detention order, the petitioner came to be taken into custody on 07.12.2023 by PSI Sahil Bhagat No. EXJ/196736 of Police Station Rajouri who delivered the petitioner’s person to District Jail, Rajouri.
07. The Govt. of UT of Jammu & Kashmir by virtue of Govt. Order No. Home/PB-V/2770 of 2023 dated 11.12.2023 came to lend its approval to the detention order and referred the case for Advisory Board’s opinion which came forward in a Report dated 26.12.2023 legitimizing the preventive detention of the petitioner reckoning the grounds to be well founded and all the requirements contemplated under the J&K Public Safety Act, 1978 having been complied without any error of law or procedure.
08. Followed by the Advisory Board’s opinion, the Govt. of UT of Jammu & Kashmir by virtue of Govt. Order No. Home/PB-V/73 of 2024 dated 05.01.2024 cam
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 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 must be justified by a clear threat to public order, not merely based on past criminal activities.
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....
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 must be justified by clear grounds and cannot serve punitive purposes; failure to differentiate factual basis renders detention illegal.
Preventive detention must be justified by relevant and timely grounds; reliance on stale FIRs is insufficient to curtail personal liberty.
Preventive detention requires specific grounds and independent application of mind by the detaining authority; mere reproduction of police dossiers is insufficient.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
