Wp (Crl) No. 395/2022 vs Ut Of J&K & Anr
2023 Latest Caselaw 667 j&K/2

     HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                     AT SRINAGAR

                          WP (Crl) No. 395/2022
                                                 Reserved on 22.05.2023
                                               Pronounced on: 29.05.2023
Mohammad Shafi Bhat
                                                        ...Petitioner (s)
                   Through: Mr. Shafqat Nazir, Advocate.
     Versus

UT of J&K & Anr.
                                                       ...Respondent(s)
                   Through: Mr Faheem Nisar Shah, GA
CORAM:
         HON'BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE.

                              JUDGMENT

1. Through the medium of this writ petition, Order no.DMB/PSA/18 of 2022 dated 02.06.2022, passed by District Magistrate, Budgam (for short "detaining authority") whereby detenu, namely, Mohammad Shafi Bhat S/o Abdul Rahim Bhat R/o Nadirgund Peerbagh, Budgam, (for short "detenu") has been placed under preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order, is sought to be quashed and the detenu set at liberty on the grounds made mention of therein.

2. Respondents have filed the reply affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial and detrimental to the maintenance of public order and, therefore, his remaining at large is a threat to the maintenance of public order. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by the respondents.

3. I have heard learned counsel for parties. I have gone through the detention record attached with the file and considered the matter.

4. The main grounds on which the detention is sought to be quashed are that the grounds of detention are vague, indefinite and no prudent man can make an effective representation against these allegations

inasmuch as case mentioned in grounds of detention has no nexus with detenu and detaining authority has not given any reasonable justification to pass impugned order of detention; that detenu was already in custody in connection with FIR nos. 176/2022 and 177/2022 and detaining authority despite having knowledge about custody of detenu, has not spelled out the compelling reasons to pass detention order; that detenu was already admitted to bail in FIR nos.39/2021 and 330/2021, but this important fact has not been reflected in grounds of detention; that detenu has not been furnished the material on the basis whereof subjective satisfaction has been arrived at while passing order of detention; that whatever material furnished to detenu is not legible and does not connect detenu in any way with allegations levelled against him; that detenu is not an English literate person to go through the grounds of detention and make an effective representation against his detention; that post execution, detenu was not given an opportunity to make representation; that post execution detention, a representation was made by wife of detenu, which has not been considered by respondents.

5. From perusal of grounds of detention, it clearly transpires that detenu has been placed under preventive detention mainly for his involvement in a number of FIRs. The allegations contained in those FIRs which have been made basis for passing the detention order, even if taken to be true on their face value, do not constitute an act which has the probability of disturbing the public order. The term "law and order" and "Public order" look similar but both have different implications. While "law and order" is a continual ongoing term, the "public order" is more temporal in nature. In the case of public order, the community or the public at large is affected by a particular action whereas the act or acts that affect only few individuals may be a case of law and order. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects "law and order", but before it can be said to affect public order, it must affect the community or public at large. The nature of

criminal act, the manner in which it is committed and its impact are some of the factors that determine whether particular act would all within the realm of "public order" or "law and order". What is alleged in the FIR, which is sole basis of putting the detenu under preventive detention, clearly falls within the ambit of term "Law and Order". Unless the criminal act attributed to the detenu has the effect of disturbing the even tempo of life of community or public at large, it would remain in the realm of "Law and order" and thus cannot be made the basis of preventive detention.

6. Recently in Banka Sneha Sheela v. State of Telangana and ors, (2021) 9 SCC 415, the Supreme Court was confronted with a case of preventive detention ordered by the State of Telangana on almost similar grounds. There were as many as five FIRs all registered against the detenu therein under Sections 420, 406 and 506 IPC and in all the FIRs the detenu was granted anticipatory bail. The detention was ordered primarily on the ground that remaining at large of the detenu would be detrimental to public order. The Supreme Court, in paragraphs No. 14, 15 and 19 hasheld thus:-

"14. There can be no doubt that for „public order‟ to be disturbed, there must in turn be public disorder. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects „law and order‟ but before it can be said to affect „public order‟, it must affect the community or the public at large..

15. There can be no doubt that what is alleged in the five FIRs pertain to the realm of „law and order‟ in that various acts of cheating are ascribed to the Detenu which are punishable under the three sections of the Indian Penal Code set out in the five FIRs. A close reading of the Detention Order would make it clear that the reason for the said Order is not any apprehension of widespread public harm, danger or alarm but is only because the Detenu was successful in obtaining anticipatory bail/bail from the Courts in each of the five FIRs. If a person is granted anticipatory bail/bail wrongly, there are well-known remedies in the ordinary law to take care of the situation. The State can always appeal against the bail order granted and/or apply for cancellation of bail. The mere successful obtaining of anticipatory bail/bail orders being the real ground for detaining the Detenu, there can be no doubt that the harm, danger or alarm or feeling of security among the general public spoken of in Section 2(a) of the Telangana Prevention of Dangerous Activities Act is make believe and totally absent in the facts of the present case.

.........

19. To tear these observations out of context would be fraught with great danger when it comes to the liberty of a citizen under Article 21 of the Constitution of India. The reason for not adopting a narrow meaning of „public order‟ in that case was because of the expression "in the interests of" which occurs to Article 19(2) to19(4) and which is

pressed into service only when a law is challenged as being unconstitutional for being violative of Article19of the Constitution. When a person is preventively detained, it is Article 21 and 22 that are attracted and not Article 19. Further, preventive detention must fall within the four corners of Article 21 read with Article 22 and the statute in question. To therefore argue that a liberal meaning must be given to the expression „public order‟ in the context of a preventive detention statute is wholly in apposite and incorrect. On the contrary, considering that preventive detention is a necessary evil only to prevent public disorder, the Court must ensure that the facts brought before it directly and inevitably lead to a harm, danger or alarm or feeling of insecurity among the general public or any section thereof at large."

7. Earlier the Supreme Court in the case of Rekha v. State of T. N, (2011) 5 SCC 244 also discussed the nature and scope of preventive detention. Paragraphs 29 and 30 of the judgment are relevant and, therefore, set out below:-

"29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal.

30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."

8. The instant case is squarely covered by the judgement rendered in the supra-mentioned case of Banka Sneha Sheela. The allegations in the FIRs registered against the detenu may be a problem of law and order but would not certainly come within the purview of the term "public order". There is nothing mentioned in the grounds of detention to demonstrate that the activities of the detenu, on the basis of which the FIR for cheating and fraud came to be registered against him, had an impact of disturbing even the tempo of life of the community or had the effect of affecting the public at large. The offences with which the detenu has been charged in the FIR are substantive offences and the ordinary law of the land is sufficient to deal with the detenu, if he is

ultimately found guilty of the allegations levelled against him in the FIR. The apprehension of the detaining authority that the detenu was likely to get bail and in that event, his remaining at large would be detrimental to the maintenance of peace and public order, cannot be basis of putting the detenu under preventive detention. The detaining authority as also the State machinery is well within its rights to oppose the bail and, if granted, take remedial measures by way of approaching the higher forum. The simplicitor case of cheating and fraud, without having wider ramifications, cannot be made the basis of issuing the detention order in the name of maintaining the public order.

9. For the reasons discussed above, the instant writ petition is disposed of and detention Order no.DMB/PSA/18 of 2022 dated 02.06.2022, passed by District Magistrate, Budgam is quashed. Respondents, including Superintendent Jail concerned, are directed to release the detenu forthwith provided he is not required in any other case. Disposed of.

10.Registry to return detention record to learned counsel for respondents.

(Vinod Chatterji Koul) Judge Srinagar 29.05.2022 (Qazi Amjad, Secy) Whether the order is reportable: Yes/No.

QAZI AMJAD YOUSUF 2023.05.30 14:26