Vishal Kumar Sharma vs Union Territory Of J&K & Ors
2023 Latest Caselaw 2372 j&K

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU

WP(Crl) No.24/2023

                                                  Reserved on : 06.10.2023
                                                Pronounced on : 21.10.2023

Vishal Kumar Sharma                                          .... Petitioner(s)

                           Through:-   Mr. Satinder Gupta, Advocate

                  V/s

Union Territory of J&K & ors.                              .....Respondent(s)

                           Through:-   Mr. Pawan Dev Singh, Dy.AG

CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE

                                  JUDGMENT

01. The petitioner has assailed the order of detention No.17 of 2022

dated 10.11.2022 passed by the District Magistrate, Jammu, vide which,

the detenu has been detained under 8(1)(a) of the Jammu & Kashmir

Public Safety Act, 1978 to prevent him from acting in any manner

prejudicial to the maintenance of public order. The said order has been

assailed through his father-Vijay Kumar Sharma.

02. The petitioner submits that the detenu has been taken into

custody on the basis of the impugned order of detention No.17 of 2022

dated 10.11.2022 passed by the District Magistrate, Jammu which is

illegal, arbitrary, malafide being violative of constitutional safeguards

available to the detenu.

03. The detention order has been challenged by the detenu on the

grounds that; (i) the registration of multiple FIR's from the year 2014 till

2022 could not have formed the basis for issuance of the detention order,

being remote in nature; (ii) their does not exist any proximate and live

connection between the acts complained of and the date of detention of

order as last FIR was in the month of Aug., 2022 and detention order was

passed in the month of Nov., 2022; (iii) the allegations alleged in the

detention order may amount to law and order issue but in no manner can

be said to have disturbed the public order; (iv) the activities allegedly

considered to be prejudicial to the maintenance of public order by

respondent No.2 do not fall within the purview of section 8(3) of the Act;

(v) the order impugned is a classic example of non-application of mind by

respondent No.2 as the grounds of detention are verbatim reproduction of

the contents of the dossier; (vi) the order of detention has been issued

oblivious to the fact that the detenu was already acquitted from one of the

FIR alleged bearing No. 134/2014 by the Trial Court, further reflecting the

non-application of mind; (vii) the detaining authority detaining the detenu

for maximum period had no power to fix the period of detention as the

detaining authority could at the most fix a period of 12 days as per section

8(4) of the Public Safety Act; (viii) the detention order was supplied,

besides some of the material, not in the language understood by the detenu

and neither the same was explained nor the translated copy of the same

was supplied; and (ix) the detenu has not been supplied all the documents,

statements and other material relied upon in the grounds of detention so as

to enable him to make effective representation.

04. Mr. Pawan Dev Singh, learned Deputy AG appearing on behalf

of the respondents have filed the counter affidavit as well as produced the

detention record. He submits that the detenu was detained on the

subjective satisfaction drawn by the Detaining Authority on the material

produced before it by the Senior Superintendent of Police, Jammu. It is

also submitted that all the safeguards enshrined under Article-22(5) of the

Constitution of India as well as under the provisions of Jammu & Kashmir

Public Safety Act has been observed while directing the detention of the

detenu. It is further submitted that as per the dossier of the Senior

Superintendent of Police, Jammu, the detenu is reported to be a hard core

criminal of the locality and is a desperate character, habitual of indulging

in acts of violence and he being a close associate of some other

dreaded/notorious/habitual criminal and has committed number of

unlawful and criminal acts, thereby scarring and terrorizing the people of

the locality, therefore, action under substantive law was not found to be

sufficient as deterrent to the detenu.

05. It is also submitted that in compliance to the District

Magistrate's order, the warrant was, accordingly, executed by the

Executing Officer-SI Manjeet Singh PID No. EXJ-846346 of Police

Station, BPP Marh Jammu, who has read over and explained the warrant

and grounds of detention to the detenu in the language, he understands and

the detenu was also informed of his right to make a representation to the

Detaining Authority as well as the Government against his detention. The

detenu has been provided all the material relied upon by the Detaining

Authority along with translated copies of the same were provided to him.

06. Heard learned counsel for the parties and perused the record.

07. One of the most precious right as guaranteed under the

Constitution of India is personal liberty. No one can be denied of his right

to life and personal liberty except in accordance with procedure

established by law.

08. The Detaining Authority is required to furnish to the detenu all

the documents referred to in the grounds of detention and all the material

relied upon while passing the order of defendant. Record reveals that all

the material has not been provided. The execution report reveals that along

with notice and grounds of detention, other documents have not been

provided to the detenu. This violates the right to make an effective

representation against the detention.

09. Reliance is also placed on Thahira Haris etc. etc. Vs.

Government of Karnataka and others, reported as AIR 2009 Supreme

Court 2184, has held as under:

"27. There were several grounds on which the detention of the detenu was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenu becomes illegal and detention order has to be quashed on that ground alone.

28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention."

10. Similar view has been held by the Hon'ble Apex Court in

Sophia Ghulam Mohd. Bham V. State of Maharashtra and others,

reported as AIR 1999 SC 3051, and Ibrahim Ahmad Batti v. State of

Gujarat, reported as (1982) 3 SCC 440.

11. Thus, the non-supplying of the material has deprived the right of

the detenu to make an effective representation. An effective representation

cannot be contemplated by the detenu till he knows what was in the mind of

Detaining Authority, while passing the order of detention.

12. The detenu was detained vide order of detention No.17 of 2022

dated 10.11.2022 passed by the District Magistrate, Jammu. The grounds of

detention reflect that the detenu has been detained on the basis of police

dossier in which FIR No. 134/2014 under Sections 451/323 RPC at Police

Station Domana; FIR No. 140/2016 under Sections 382/341/323/34 RPC &

4/25 A Act at Police Station Domana; FIR No. 12/2018 under Sections

307/341/323/147 IPC & 4/25 Arms Act at Police Station Kanachak; FIR No.

150/2019 under Sections 452/323 RPC & 4/25 A Act at Police Station

Domana; FIR No. 120/2020 under Sections 341/323/307/147/148 /109/120-

B IPC & 4/25, 4/27 Arms Act at Police Station Kanachak; FIR No. 313/2021

under Sections 3/4/25 Arms Act at Police Station Nagrota; FIR No.

135/2021 under Sections 382/341/323 IPC at Police Station Kanachak and

FIR No. 95/2022 under Sections 323/341/34 IPC & 4/25 Arms Act at Police

Station Kanachak, have been registered against the detenu and the detenu

was considered to be a notorious criminal and repeatedly indulging in

heinous crimes, thus, in view of the dossier submitted by the SSP Jammu,

the Detaining Authority has passed the impugned order of detention as the

ordinary law was not adequate to deter him from indulging in the repeated

acts of violence of the detenu does not fall within the sphere of activity

prejudicial to the maintenance of the public order as contained under Section

8(3)(b) of the Public Safety Act.

13. It is also argued that the detention suffers from bias of non-

application of mind as the detention is based on registration of FIR No.

134/2014 and the detenu has already been acquitted in the said FIR vide

order of Chief Judicial Magistrate, based on the compromise. This fact has

not been noticed by the Detaining Authority while passing the order of

detention and, thus, the same vitiates the detention.

14. Though, this personal liberty may be curtailed when person faces a

criminal charge or is convicted of an offence sentenced to imprisonment.

The Constitution, however, by adding Article 22(5) have incorporated

detention of a person without any formal charge and trial and without such

person being held guilty of an offence and sentenced by a competent court.

This is to keep the society safe from such activities that are likely to deprive

large people of their right to life and personal liberty. The justification of

such detention is suspicion or reasonability which requires action to be taken

to prevent apprehended objectionable activities, Article 22(5) of the

Constitution provides for the same.

15. Perusal of the detention order reveals that the allegations against

the detenu are with regard to commission of offences under Sections 323,

382, 307, 147, 452, 34 IPC and 4/25 Arms Act. The detention of the detenu

is with regard to activities prejudicial to the maintenance of public order.

The record further reveals that the allegations may amount to law and order

but in no manner can be said to be prejudicial or disturbing the public order.

16. In Mallada K. Sri Ram vs. State of Telangana & ors. reported

as 2022 SCC Online 424, the Hon'ble Supreme Court has held as under:-

"12. The distinction between a disturbance to law and order and a disturbance to public order has been clearly settled by a Constitution Bench in Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740. The Court has held that every disorder does not meet the threshold of a disturbance to public order, unless it affects the community at large. The Constitution Bench held:

"51. We have here a case of detention under Rule 30 of the Defence of India Rules which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. It follows that if such a person is not detained public disorder is the apprehended result. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings. Does the expression "public order" take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Suppose that the two fighters were of rival communities and one of them tried to raise communal passions. The problem is still one of law and order but it raises the apprehension of public disorder.

Other examples can be imagined. The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under

Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

52. It will thus appear that just as "public order" in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting "security of State", "law and order" also comprehends disorders of less gravity than those affecting "public order". One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression "maintenance of law and order" the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules."

15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order". In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective

satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law."

Thus, the allegations against the detenu cannot be said to be

affecting the community at large but only a law and order problem.

17. It was next submitted that the detenu was unsustainable as

ordinary law of land was sufficient to deal with the matters.

18. It is well settled that if the remedies to deal with the detention are

sufficient under the ordinary laws of the land taking recourse to preventive

detention is contrary to constitutional guarantee and detention becomes

invalid and legally unsustainable. In V. Shantha vs. State of Telangana &

ors. reported as AIR 2017 SC 2625, the Hon'ble Supreme Court while

quashing the detention order and observing that if the remedies to deal with

the detenu are sufficient under the ordinary laws of the land, taking recourse

to the provision of preventive detention is contrary to the Constitutional

guarantees whereby the detention order becomes invalid and legally

unsustainable, in para 12 held as under:

"12. The detenu was the owner of Laxmi Bhargavi Seeds, District distributor of Jeeva Aggri Genetic Seeds. FIRs were lodged against the detenu and others under sections 420, 120-B, 34, IPC and Sections 19, 21 of Seeds Act, 1966. It was alleged that the chilli seeds sold were spurious, as they did not yield sufficient crops, thus causing wrongful loss to the farmers, and illegal gains to the accused. Whether the seeds were genuine or not, the extent of the yield, are matters to be investigated in the FIRs. Section 19 of the Seeds Act provides for penalty by conviction and sentence also. Likewise, Section 20 provides for forfeiture. Sufficient remedies for the offence alleged were, therefore, available and had been invoked also under the ordinary laws of land for the offence alleged."

19. In view of the aforesaid discussion and without adverting to the

other grounds raised in this petition, this petition is allowed. Accordingly,

order of detention No.17 of 2022 dated 10.11.2022 passed by the District

Magistrate, Jammu, is quashed. The detenu-Vishal Kumar Sharma S/o Sh.

Vijay Kumar Sharma R/o Village Galwadey Chak, Tehsil Marh, District

Jammu, is directed to be released from the custody forthwith if he is not

otherwise required in any other case.

20. Detention record be handed over to learned counsel for the

respondents by the Registry forthwith.

(Sindhu Sharma) Judge JAMMU RAM MURTI/PS 21.10.2023 Whether the order is speaking : Yes/No Whether the order is reportable : Yes/No