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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
RAHUL BHARTI, J.
Sumit Jandyal alias Gataru S/o Sh. Om Parkash Gupta – Appellant
Versus
Union Territory of Jammu & Kashmir through its Principal Secretary, Department of Home – Respondent
HCP No. 77 of 2024
Decided on : 10-10-2024
(A) Jammu & Kashmir Public Safety Act, 1978 - Section 8 - Preventive detention - Writ of habeas corpus sought for restoration of personal liberty curtailed under preventive detention order - Detention order found to be based on a dossier that lacked factual differentiation and was aimed at punitive custody rather than maintenance of public order. (Paras 2, 4, 8, 24)
(B) Preventive detention - The court emphasized that preventive detention should not serve as a substitute for punitive measures and must be justified by clear and distinct grounds. (Paras 16, 24)
Facts of the case:
The petitioner was detained under the Jammu & Kashmir Public Safety Act, 1978, based on allegations of being a habitual criminal involved in gang activities. The detention order was issued without proper differentiation of grounds and was challenged as being punitive in nature. (Paras 2, 4, 6)
Findings of Court:
The court found the preventive detention order to be illegal due to lack of proper justification and intent to circumvent the judicial process, thus restoring the petitioner’s liberty. (Paras 24)
Issues: The main issues included whether the detention order was justified and whether it was an attempt to impose punitive custody rather than preventive measures. (Paras 16, 24)
Ratio Decidendi: The court ruled that the preventive detention order was vitiated by illegality, as it was based on a mechanical exercise without proper factual basis, aimed at circumventing the judicial process. (Paras 24)
Result: The preventive detention order was quashed, and the petitioner was ordered to be released from custody.
JUDGMENT :
01. Heard learned counsel for the petitioner as well as Mr. Rajesh Thappa, learned AAG for the respondents. Perused the pleadings and the record therewith. Also perused the detention record produced by Mr. Rajesh Thappa, learned AAG.
02. The petitioner – Sumit Jandyal, acting through his father – Om Parkash Gupta is invoking writ jurisdiction of this Court under article 226 of the Constitution of India seeking a writ of habeas corpus for restoration of his personal liberty which has come to be curtailed with effect from 10.05.2024 pursuant to exercise of preventive detention jurisdiction under the Jammu & Kashmir Public Safety Act, 1978.
03. The respondent No. 3 – Senior Superintendent of Police (SSP), Samba addressed a communication No. Legal/PSA/2024/ 870-73 dated 01.05.2024 to the respondent No. 2 – District Magistrate, Samba thereby laying a dossier with respect to the petitioner seeking his preventive detention under the Jammu & Kashmir Public Safety Act, 1978 by referring to the activities of the petitioner as cited in the dossier highly prejudicial to the maintenance of public order.
04. In the said dossier, the respondent No. 3 - Senior Superintendent of Police (SSP), Samba came to portray the petitioner to be a notorious, hard-core and habitual criminal involved in many criminal offences including attempt to murder, assault by using sharp edged weapons in carrying out the criminal activities and thereby terrorizing the innocent citizens rendering his activities being highly prejudicial to the maintenance of public order. The petitioner is alleged to be operating a gang branded as “Gataru Gang” with involvement of his brother and in rivalry with opposite Gang known as “Khouf Gang”.
05. The petitioner’s alleged record of criminal activities are related to FIR No. 52/2O24 U/S 399 IPC, 3/4/25 Arms Act of P/S Vijaypur, FIR No. 67/2006 U/S 341/323/147 RPC of P/S Vijaypur, FIR No. 15/2017 U/S 353/332/147 RPC of P/S Vijaypur, FIR No. 71/2019 U/S 341/323/34/427/506 RPC of P/S Vijaypur, FIR No. 177/2016 U/S 409/403/120-B RPC of P/S Gandhi Nagar and lastly proceedings under section 107/117 Cr. P.C. of P/S Vijaypur.
06. The respondent No. 2 – District Magistrate, Samba without availing even breathing time at his end came forward with an instant issuance of a detention Order No. 15/PSA of 2024 dated 02.05.2024 next morning ordering preventive detention of the petitioner under section 8 of the Jammu & Kashmir Public Safety Act, 1978 in order to prevent the petitioner from indulging in activities in any manner highly prejudicial to the maintenance of public order. The petitioner was ordered to be detained in District Jail, Kathua.
07. The aforesaid detention Order No. 15/PSA of 2024 dated 02.05.2024 is purportedly based upon the grounds of detention formulated by the respondent No. 2 – District Magistrate, Samba in order to come up with a subjective satisfaction that the acts of omission and commission alleged against the petitioner afforded a subjective satisfaction for ordering his preventive detention.
08. The grounds of detention so set out by the respondent No. 2 – District Magistrate, Samba and the dossier submitted by the respondent No. 3 – Senior Superintendent of Police (SSP), Samba are carbon copy of each other in text and context leaving no basis to differentiate the two, factually & legally.
09. The preventive detention Order No. 15/PSA of 2024 dated 02.05.2024 passed by the respondent No. 2 – District Magistrate, Samba came to be approved by the Govt. of UT of Jammu & Kashmir through its Home Department vide Govt. Order No. Home/PB-V/963 of 2024 dated 07.05.2024. At the time of passing of this Govt. Order No. home/PB-V/963 of 2024 of approving the preventive detention Order No. Order No. 15/PSA of 2024 dated 02.05.2024, the arrest and detention of the petitioner had not taken place as it was on 10.05.2024 that the petitioner came to be arrested and detained in execution of detention warrant by Inspector Zaheer Mushtaq
Preventive detention must be justified by clear grounds and cannot serve punitive purposes; failure to differentiate factual basis renders detention illegal.
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 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 current threats to public order, not merely by past criminal activities.
The court held that preventive detention requires substantiated and lawful justifications, ruling against arbitrary state authority.
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 a clear threat to public order, not merely based on past criminal activities.
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