Sunil Kumar @ Gokul Age 22 Years vs Union Territory Of J&K Through ...
2023 Latest Caselaw 345 j&K

                                           1

                                                                      S No. 01

 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU

                                                   WP (Crl) No. 23/2022
                                                   Reserved on :22.12.2022
                                                   Pronounced on :23.02.2023

Sunil Kumar @ Gokul age 22 years S/O Tarseem                       ....Petitioner(s)
Lal (caste Bhagat) R/O Chak Aslam Tehsil R.S.
Pura District Jammu.

                    Through :- Sh.D.S. Saini, Sr. Advocate

         V/s

1. Union Territory of J&K through Secretary Home ..Respondent(s)
   Department Civil Secretariat, Jammu;
2. District Magistrate Jammu;
3. Senior Superintendent of Police Jammu;
4. Superintendent Central Jail Kot Bhalwal Jammu.
                    Through :- Sh.Pawan Dev Singh, Dy AG

Coram: HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
                                    JUDGMENT

1. Petitioner by invoking the jurisdiction of this Court in terms of Article-226 of the Constitution of India, has sought the indulgence of this court for issuance of writ of Habeas Corpus, writ of Certiorari or any other appropriate writ, order or direction with the prayer for quashment of the impugned detention order No. 05 of 2022 dated 13.05.2022 issued by respondent No. 2 for detaining the petitioner u/s 8 (i) (a) of J&K Public Safety Act 1978 and further commanding the respondent No. 4 to release the petitioner from Central Jail KotBhalwal Jammu on the following grounds:-

(i) that the petitioner is aggrieved of the impugned detention order No. 05 of 2022 dated 13.05.2022 passed by respondent No.2whereby the petitioner has been detained under Section 8(i)(a) of the J&K Public Safety Act 1978 and direction was issued to the respondent No.3 to execute the aforesaid impugned detention order and detain the petitioner in the Central Jail KotBhalwal, Jammu, that only the photostat copy of the dossier herein list of the old criminal cases by adding a fresh FIR No. 75/2022 registered with Police Station R.S. Pura was communicated/supplied to the petitioner on 25.05.2022 by respondent No. 04 in Central Jail KotBhalwal Jammu, but the petitioner was not supplied with the impugned detention order alongwith dossier and also was not supplied the grounds of detention, FIR, statement of the witnesses or seizure memo or challan or any other material regarding the registration of criminal cases mentioned in the dossier against the petitioner; that on

27.05.2022 the relation of the petitioner namely Rahul Kumar filed the application before the District Magistrate, Jammu on behalf of the petitioner for issuing of the attested copy of the detention order in respect to petitioner/detenue Sunil Kumar alias Gokal S/o Tarsem Lal Caste Bhagat R/o Chak Aslam Tehsil R.S.Pura District Jammu as the aforesaid petitioner Sunil Kumar is already detained under the PSA and is kept at Central Jail KotBhalwal Jammu, but the copy of the impugned detention order is not supplied to the petitioner, the said application was received by the office of the respondent No.2 on 27.05.2022, but despite receipt of the application for issuance of the attested copy of the detention order, intentionally and deliberately did not supply the same;

(ii) that the impugned detention order and the list of the cases attached with detention order are in the English language, whereas, petitioner can only sign but cannot read or understand the detention order as well as the list of the cases annexed with the impugned order which are in English, neither the alleged detention order was ever read over and explained to him in the Hindi or Dogri language which the petitioner understand, as such, the petitioner is totally ignorant about the alleged impugned detention order which has prevented him from making effective representation in terms of Section 22 (5) read with Section 13 of Public Safety Act.

2. Respondent No. 02(District Magistrate Jammu) the detaining authority has filed a counter affidavit, wherein, it has been specifically contended, that none of the fundamental, constitutional, statutory or any legal right of petitioner stands violated/infringed by respondents, as such, no cause of action has accrued to the petitioner to maintain the present writ petition; the petitioner has not approached the court with clean hands, instead has tried to mislead the court, keeping in view the prejudicial activities of the petitioner/detenue his preventive detention has been ordered, whereby the writ petition is liable to be dismissed. It is contended, that the petitioner has been detained under the provisions of J&K Public Safety Act 1978 as per the dossier supplied by SSP Jammu (respondent No.03) vide his endorsement No. CRB/dossier/2022/03/DPOJ dated 02.05.2022 in order to prevent him from indulging in criminal activities which are prejudicial and detrimental to the maintenance of public order, the detention order alongwith grounds of detention and other material has been read over and explained to the detenue in the language which he fully understood and the entire material was furnished to him against proper receipt. It is moreso contended, that the detenue is a hardcore criminal, desperate character, history sheeter and habitual of indulging in acts of violence such as attempt to murder, stabbing, arms act and other criminal cases, and thereby has spread the reign of terror among the peace loving people of the area, the anti-social activities of the petitioner are highly prejudicial to the maintenance of public order which warrants immediate preventive

measures, as number of criminal cases have been registered against him in Police Station R. S. Pura Jammu viz; (i) FIR No. 213/2014 u/s 341/323 RPC, 4/25 A. Act P/S R.S Pura, (ii) FIR No. 83/2015 u/s 307/341/323/147 RPC, 4/25 A. Act P/S R.S Pura, (iii) FIR No. 80/2016 u/s 341/323/34 RPC, 4/25 A. Act P/S R.S Pura, (iv) FIR No. 223/2017 u/s 3/25, 4/25 A. Act P/S R.S Pura, (v) FIR No. 59/2018 u/s 323/458/34 RPC, 4/25 A. Act P/S R.S Pura, (vi) FIR No. 67/2018 u/s 307/341/323/147/149 RPC, 4/25 A. Act P/S R.S Pura, (vii) FIR No. 06/2020 u/s 452/323/201/34 IPC, 4/25 A. Act P/S R.S Pura &(viii) FIR No. 75/2022 u/s 3/25, Arms Act, petitioner/detenue is a habitual criminal and if he remains free in the society, he would definitely indulge in criminal activities which would be danger to the public peace and tranquility, therefore, the presence of subject in society is certainly prejudicial to the maintenance of public order, peace and tranquility and safety of citizens of the area.

3. Sh. D.S. Saini Ld. Sr. Advocate appearing on behalf of petitioner, has reiterated the grounds urged in the petition and has vehemently sought the setting aside/quashment of the impugned detention order on the following counts:-

(i) It is argued, that petitioner/detenue has not been supplied the copies of dossier, copies of all the FIRs registered against him, copies of recovery & seizure memos, copies of statements of prosecution witnesses recorded u/s 161/164-A Cr.pc and has therefore been deprived from his legal right to make effective representation before the State Govt. which constitute infraction of his valuable right guaranteed under Article 22(5) of Constitution of India r/w Sec. 13(1) of J&K Public Safety Act which makes the detention order invalid.To buttress his arguments, learned counsel has relied upon the decisions reported in, (i) AIR 2000 SC 2504 (State of Maharashtra &Ors. v. Santosh Shankar Acharya), and (ii) LPA No. 137/2020 (Saboor-ul-HaqMalla v. Union Territory of JK &Anr.) decided by the Division Bench of Hon'ble High Court of J&K on 18.12.2020;

(ii) It is argued, that the impugned detention order and the list of cases attached with it are in the English language whereas the petitioner/detenue only understands Hindi/Punjabi,neither the detention order was read over and explained to the petitioner in Hindi or Dogri language which is a pre-requisite for maintainability of the detention order, the non-supply of detention order and all other documents in Hindi or Punjabi language violates the provisions of law as such the detention order deserves its quashment. To support his arguments, learned counsel has relied upon a decision reported in 1992 Legal Eagle (J&K) 28 (Manzoor Ahmad Malik v. State &Ors.);

4. Sh. Pawan Dev Singh, learned Dy AGappearing on behalf of respondents, has reiterated the grounds urged in the detention order, and has vehemently argued, that the detenue/petitioner is a habitual criminal who has created fear amongst the general public and since he was likely to commit similar offences in future, it was important to prevently detain him, as the ordinary law had no deterrent effect on him. It is argued, that the petitioner has no respect for law and has indulged in so many cases viz; attempt to murder, burglary, wrongful restraint and assault, abduction cases, use of sharp edged weapons, extortion, assault on public servants, theft cases, illegal possession of fire arms, rioting, arson, and all the offences against the petitioner are heinous in nature as he has indulged in organized crime and has disrupted the peace of the area, therefore, the detention order against the petitioner needs its confirmation and dismissal of the petition.

5. I have heard learned counsel for the petitioner and learned Dy. AG for respondents. I have also perused the contents of the petition, counter affidavit filed by the respondentNo. 02 and the record made available by the respondents.

6. The first argument urged by learned counsel for the petitioner is, "that the detenue/petitioner has not been supplied the copies of dossier, copies of FIRs registered against the petitioner, recovery memos, statements of witnesses recorded under Section 161 Cr.P.C to enable the petitioner to make effective representation against the impugned detention order, thereby, for non-supplying of such material, petitioner's right to representation against his detention has been violated in terms of Article 22 (5) of Constitution of India r/w Section 13 of Jammu and Kashmir Public Safety Act 1978."

In AIR 2000 SC 2504, (State of Maharashtra and Ors. -

Appellants v. Santosh Shankar Acharya - Respondent) relied upon by learned counsel for the petitioner, Hon'ble Supreme Court quashed the detention order on the ground that the detenue was not supplied the copies of the material from which the detention order was made, there was non- communication of the fact to the detenue that he could make representation to the detaining authority which amounted to denial of representation to the detenue and infraction of a valuable constitutional right guaranteed to the detenue under Article 22 (5) of Constitution of India. In LPA No 137/2020 (Saboor-ul-Haq Malla v. Union Territory of JK & Anr.) also relied upon

by learned counsel for the petitioner, Division Bench of High Court of J&K on 18.12.2020 quashed the detention order on the ground that the detenue was not communicated the grounds of detention. Ratios of the judgments(supra) relied by the learned counsel for the petitioner are distinguishable and inapplicable to the facts of the case in hand. It is apt to reiterate here, that the detention record depicts that the order of detention dated 13.05.2022 issued by respondent No. 02 (District Magistrate Jammu) vide order No. 05 of 2022 has been served/executed upon the petitioner/detenue by PSI Amit Singh PID No. EXJ 196422 of P/S R. S. Pura on 18.05.2022 within a period of five days alongwith all the detention record/material including FIR, statement of witnesses, detention order, notice of detention, grounds of detention and other relevant material/documents totaling 143 leaves. Therefore, it does not lie in the mouth of petitioner to urge that the essential documents/material has not been supplied to him. From the detention record, it is clearly demonstrated, that all the relevant material in regard to the detention of the petitioner has been supplied to him who has been informed to make representation to the Government as well as to the detaining authority against his detention. That being so, there has been no violation/infraction/infringement of petitioner's right to make representation in terms of Article 22(5) of the Constitution of India read with Section 13 of J&K Public Safety Act. The arguments canvassed by learned counsel for petitioner, therefore, being far from reality, misconceived under law are repelled, discarded and rejected.

7. The 2nd argument urged by learned counsel for the petitioner is, "that the detenue only understands Hindi/Punjabi language, the detention order was not read over to him in Hindi or Punjabi or Dogri language which is a pre- requisite for maintainability of detention order and non-supply of the detention order in the language which the detenue understands makes the detention order liable to be quashed."

In 1992 Legal Eagle (J&K) 28 (Manzoor Ahmad Malik v. State and Others) relied upon by learned counsel for the petitioner, detention order was quashed by Hon'ble High Court of J&K on the ground that it was mandatory on part of the detaining authority to supply the grounds of detention to the detenue in the language which the detenue knows and infraction thereof is infringement of his legal and constitutional right to make effective representation. The case law (supra) relied by learned counsel for petitioner is also distinguishable and inapplicable to the facts of

the case in hand. Detention record demonstrates that 143 leaves of whole of the detention record/material including copy of detention order, notice of detention, grounds of detention, dossier of detention, copies of FIR, statement of witnesses and other relevant documents have been supplied/provided to petitioner/detenue by Executing Officer PSI Amit Singh PID No. EXJ196422 P/S R. S. Pura which has been read over in English language and explained to petitioner/detenue in Hindi/Dogri language which he fully understood and in receipt thereof petitioner/detenue has appended his signature in English on the receipt order. The arguments of learned counsel for petitioner that the detention record and all the documents were not read over to the petitioner in Hindi/Dogri language, is far from reality, untrue, legally unsustainable, repelled, discarded and rejected.

8. Although right of personal liberty is most precious right, guaranteed under the Constitution, which has been held to be transcendental, inalienable and available to a person independent of the Constitution, yet the personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. A person is not to be deprived of his personal liberty except in accordance with procedure established under law and the procedure as laid down in ManekaGandhi vs. Union of India, (1978 AIR SC 597), is to be just and fair. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, the framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object is to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large to wait and watch as by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing general public to risk and causing

colossal damage to life and property. It is for that reason, necessary to take preventive measures and prevent the person bent upon to perpetrate mischief from translating his ideas into action. Article 22 (5) of the Constitution of India, therefore, leaves scope for enactment of preventive detention law.

9. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of likelihood of detenue acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in HaradhanSaha vs. State of W.B. (1975) 3 SCC 198, points out that a criminal conviction, on the other hand, is for an act already done, which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case, a person is punished to prove his guilt and the standard is proof, beyond reasonable doubt, whereas, in preventive detention a man is prevented from doing something, which is necessary for reasons mentioned in the Act, to prevent.

10. Article 22 (5) of the Constitution of India and Section 13 of the J&K Public Safety Act 1978, guarantee safeguard to detenue to be informed, as soon as may be, of grounds on which order of detention is made, which led to the subjective satisfaction of detaining authority and also to be afforded earliest opportunity of making representation against order of detention. Detenue is to be furnished with sufficient particulars to enable him to make a representation, which on being considered, may obtain relief to him. Detention record, made available by learned counsel for respondents, reveals that detention order was made on proper application of mind to the facts of the case and detenue was detained at the time of execution of detention order, the material and grounds of detention and also informed that he had a right to represent against his preventive detention. Perusal of detention order depicts its execution. It further reveals that the copy of detention warrant, grounds of detention, notice of detention, copy of dossier etc. were received by the petitioner-detenue which were read over and explained to detenue in Urdu/Kashmiri languages, which detenue understood fully in token of which the signatures of detenue had been obtained. It also divulges that detenue was

informed that he can make representation to the government and detaining authority. The grounds of detention are definite, proximate and free from any ambiguity. The detenue has been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order. Detaining Authority has narrated facts and figures that made the authority to exercise its powers under Section 8 J&K Public Safety Act 1978 and record subjective satisfaction that detenue was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State.

11. Further, by indepth perusal of the grounds of detention, one cannot lose sight of the fact that petitioner/detenue actively and covertly takes part in many criminal activities, has no respect for law of land and always believes in breaking the law repeatedly, thus, scaring and terrorizing the people of the area as he habitually deals in cases viz; attempt to murder, arms act etc and being a habitual criminal if he remains free in the society it would be danger to public peace and tranquility which is certainly prejudicial to the maintenance of public order and safety of citizens of the area. Earlier, petitioner/detenue had indulged in as many as 7 FIRs and his earlier detention order No. 09 of 2021 dated 08.07.2021 was quashed by this Court vide Order dated 20.04.2022. Petitioner/detenue again has indulged in criminal activities under Arms Act and FIR No. 75/2022 u/s 3/25 Arms Act has been registered against him in P/S R. S. Purawhereby he has been again detained by respondent No. 02 vide detention order No. 05 of 2022 dated 13.05.2022, so as to prevent him from acting in a manner similar to his past acts or engaging in activities prejudicial to security of the State or maintenance of public order. Further, the sponsoring authority has not only supplied the material, viz; dossier, containing gist of the activities of the detenue, but has also supplied the grounds of detention. All this material was before the detaining authority when it arrived at subjective satisfaction that activities of the detenue were prejudicial to maintenance of public order and requires preventive detention of detenue. Moreso, if in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making

or sustaining an order of detention. The same views and principles were reiterated by the Apex Court in Goutam Jain vs. Union of India, AIR 2017 SC 230. Since the actions taken against the petitioner/detenue under the ordinary law from time to time have not been proved to be deterrent, as such, the respondents had no other option but to keep him in preventive detention.

12. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanizing the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State or maintenance of public order must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another vs. Nabila and another (2015) 12 SCC 127.

13. In the present case, the petitioner has been involved in FIR No. 75/2022 registered with Police Station R. S. Pura for commission of offence u/ss 3/25 Arms Act.From the bare perusal of the FIR and the allegations therein against the petitioner, it is discernable, that the petitioner is a hardcore criminal, has become a habitual offender among the people of the area, the actions taken against him under ordinary law from time to time have not been proved to be deterrent. It seems that petitioner/detenue instead of mending his ways has continuously been indulging in criminal activities and has not shown any respect for the law of the land, as such, the petitioner/detenue has created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area, has become a chronic fear amongst the people of the area. Thus, the activities of the petitioner are of hardcore criminal and habitual nature of indulging in acts of attempt to murder, Arms Act and other criminal nature, hence, petitioner has been rightly detained by Respondent No. 2, therefore, the detention order

issued vide order No. 05 of 2022 dated 13.05.2022, does not suffer from any illegality, propriety and perversity, the same is affirmed/upheld.

14. For the foregoing discussion, the petition sans any merit, is accordingly, dismissed along with connected application(s), if any.

15. Registry to return the detention record against proper receipt.

(MOHAN LAL) JUDGE Jammu 23.02.2023 Vijay

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No