Babbar Khan vs Ut Of J&K Through
2023 Latest Caselaw 2351 j&K

                                                                      Sr. No. 46

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

                                                   Pronounced on : 19.10.2023

Case No. : WP (Crl) No. 18/2023


Babbar Khan, age 29 years
S/o Gh. Nabi Khan
R/o H. No. 20 (Bhawani Nagar),
Bhagwati Nagar, Jammu
Presently lodged in Central Jail
Kotbhalwal, Jammu.                                                .....Petitioner(s)


                       Through :- Mr. Aseem Sawhney, Advocate with
                                  Mr. Sarfraz Ahmad, Advocate.

                  Vs

1.    UT of J&K through
      Principal Secretary to Government
      Home Department, Civil Secretariat,
      Jammu.
2.    District Magistrate, Jammu.
3.    Sr. Superintendent of Police, Jammu.
4.    Superintendent of Police, Central
      Jail, Kot Bhalwal, Jammu.                                 .....Respondent(s)


                       Through :- Mr. Pawan Dev Singh Dy.A.G.

Coram:     HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                    JUDGMENT

19.10.2023

1. The petitioner, Babbar Khan has challenged the order of detention order

No. 19 of 2022 dated 24.11.2022, passed by the respondent No.2,

mainly on the ground that the same has been issued without application

of mind; that the petitioner was not explained the documents in the

language he understood; that the detention order earlier passed by the

respondents was quashed by this Court in the petition filed by the

petitioner and there is no mention of the same in the detention order; that

the petitioner is on bail in the FIR in question and the respondents could

have applied for cancellation of the bail but did not choose to do so. The

petitioner could not make proper representation in view of the fact that

the contents of the order were not made to understand and the material

was also not supplied.

2. The respondents have appeared and filed counter to the petition wherein

it is submitted that the detention order has been passed on the basis of

subjective satisfaction by the respondent No.2; that the earlier action

taken against the petitioner did not deter him from indulging in criminal

activities; that the respondents have complied with all the formalities

which were required to be observed by the respondents while passing

the detention order; that the respondents have made the petitioner to

understand the grounds of detention in the language he understood. The

respondents seek dismissal of the petition.

3. The detention record has been produced by the learned Deputy Advocate

General.

4. Heard learned counsel for both the sides.

5. The detention order has been purportedly passed for maintenance of

public order.

6. The detention order mentions of ten FIRs registered with different

Police Stations, the last one being registered in November, 2022 with

Police Station, Nowabad under Sections 332 & 353 IPC read with 4/25

Arms Act. The detention order though passed on 24.11.2022 was

executed on 07.02.2023 and the petitioner was lodged in Central Jail,

Kot Bhalwal, Jammu. Nothing is forthcoming from the record as to why

so much of time was taken by the respondents for execution of the

warrant. No explanation is given in the objections filed by the

respondents.

7. Learned counsel for the petitioner has brought to the notice of the court

the judgment of the Division Bench of this Court passed in LPA No.

129/2021 wherein the detention order earlier passed against the

petitioner vide No. 05 of 2021 dated 05.05.2021 was quashed.

8. The detention order in question does not reveal of the earlier detention

order passed against the petitioner and its quashment in LPA by the

Division Bench. The record also reveals of detention order passed

against the petitioner in the year 2018 and the same being quashed by

the court in the petition filed by the petitioner. The same should have

found mention in the detention order questioned in the present petition.

Why this relevant fact was not been mentioned in the detention order is

best known to the respondent No.2. The petitioner was on bail in the last

FIR mentioned in the detention order that is 136 of 2022 registered with

Police Station, Nowabad but again this fact is not mentioned in the

detention order. This also speaks of non-application of mind of the

detaining authority while passing the order. The detention order cannot

be passed against the person as a matter of routine but only after taking

into consideration all the circumstances and also mentioning the same in

the detention order so that the person is not deprived of all the material

facts which should have found mention in the detention order.

9. The petitioner could be proceeded by the authorities without invoking

the detention order. It is trite proposition of law that where the authority

could proceed against the person through ordinary law then the

detention order need not be invoked and pressed into service by the

concerned authority.

10. The preventive detention is a measure not to punish the person but to

prevent some anticipated action of the person against whom the

detention order is passed. The liberty of the person gets compromised

wherein the detention order is passed on the grounds which cannot be

said to be germane for the purpose for which it is passed and the order of

detention is prima facie not passed on well settled principles.

11. The detention order is required to be quashed on the aforesaid grounds

itself.

12. The contention raised in the petition that the material was not supplied

to him or that the petitioner was not made to understand the material

provided to him while executing the warrant of detention cannot be

accepted. The execution report meets the argument of the petitioner

itself, the petitioner being signatory to the aforesaid circumstance.

13. In the light of the aforesaid discussion, the detention order, impugned in

the present petition, is quashed and the petitioner is directed to be

released forthwith if not required in any other case.

14. The record be returned back to the learned Deputy Advocate General.

(PUNEET GUPTA) JUDGE Jammu :

19.10.2023 Pawan Chopra

Whether the Judgment is speaking : Yes/No Whether the Judgment is reportable: Yes/No

PAWAN CHOPRA 2023.10.19 15:57 I attest to the accuracy and integrity of this document