HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

…

WP(Crl) 71/2019

CM No.239/2020

Reserved on: 05.03.2020

Pronounced on:19.03.2020

Amjad Khan

……. Petitioner(s)

Through: Mr. Madan Lal, Advocate.

Versus

State and others

……Respondent(s)

Through: Mr. Aseem Sawhney, AAG

CORAM: HON’BLE MR JUSTICE SANJEEV KUMAR, JUDGE

JUDGEMENT

1. The challenge in this petition is thrown to Order No. 09/PSA of 2019

dated 08.08.2019 passed by the District Magistrate, Poonch whereby

the petitioner (hereinafter referred to as >the detenu?) has been

detained under Section 8(b) of the J&K Public Safety Act, 1978 for a

period of three months on the grounds detailed in the grounds of

detention simultaneously served upon the detenu. The impugned

detention order has been assailed inter alia on the following grounds:-

(i)

That the registration of single FIR against the detenu that

too on a false and concocted grounds cannot be made the

basis to put the detenu under preventive detention.

(ii)

That the involvement of the detenu in single incident

which is reflected in the FIR No.209 of 2019 cannot

constitute threat to the maintenance of public order and

may at the most amount to law and order problem for

which the substantive law of the land has to take its

course.

2

WP(Crl) No. 71/2019

(iii) That the safeguards envisaged under the J&K Public

Safety Act, 1978 and the Constitution of India have not

been followed and therefore, the impugned order of

detention is vitiated.

2. The respondent No.2 has filed the reply affidavit placing the reliance

on the judgment of the Hon?ble Supreme Court of India in the case of

Haradhan Saha V. State of West Bengal reported in (1975) 3 SCC

198. It is submitted that the purpose of preventive detention is only to

detain a person so as to prevent him from acting in any manner

prejudicial to the maintenance of public order. Whereas the

substantive law is a punitive action where an accused if held guilty is

to be convicted and sentenced. He, thus, states that the drawing of

parallel between the prosecution in a Court of law and preventive

detention is illogical, for, the two operate to achieve two different

objectives. It is pleaded that the detaining authority passed the

detention order after deriving subjective satisfaction on the basis of

the material placed before it by the Police and other agencies of the

State. The detenu was handed over the order of detention, the grounds

of detention and all other material relied upon by the detaining

authority. The matter was then placed before the Advisory Board

which opined with regard to the necessity of the putting the detenu in

preventive detention. Based on the opinion of the Advisory Board, the

Government Home/PB-V/2100 of 2019 dated 01.10.2019 confirmed

the order of detention of the detenu. The respondents in their affidavit

have also referred to the activities of the detenu including raising of

3

WP(Crl) No. 71/2019

anti-India and pro-freedom slogans viz. <Hum Kya Chachtya Hain

Azadi”. It is stated that the detenu not only indulged in

the activities calculated to disturb even tempo of life, but, he

instigated others also to indulge in stone pelting on the forces

deployed in the area for maintaining peace and order. It is, thus, urged

that for the activities of the detenu along with others, an FIR

No.209/2019 under Section 124-A/336/353/427 RPC was registered at

Police Station, Surankote. In nutshell, the respondents have pleaded

that the activities of the detenu were such and his remaining at large

would have disturbed the even tempo of life thereby seriously

prejudicing public order. It is on these grounds, the respondents have

sought to defend the detention order.