Angoor Choudhary vs Ut Of J & K Through
2023 Latest Caselaw 2009 j&K

                                                                          Sr. No.



        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         ATJAMMU

                                                   HCP No. 03/2023

                                                   Reserved on: 15.09.2023
                                                   Pronounced on:18.09.2023

Angoor Choudhary, age 28 years,                                       .....Petitioner(s)
S/O Nagina Choudhary, R/O Bishan Purba,
Ward No. 4, P/O B.B.Bankataba,
P/S, Bathbadia Champaran, Bihar,
through his wife Anju Kumari.

                                Through :- Mr. Anmol Sharma, Advocate

                          v/s

UT of J & K through                                                .....Respondent(s)
District Magistrate, Jammu.

                                Through :- Mr. P D Singh, Dy AG


CORAM: HON'BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                                  JUDGMENT

18.09.2023

1. District Magistrate, Jammu (hereinafter called 'Detaining Authority') in

exercise of powers under Section 8(1)(a) of the J&K Public Safety Act,

1978, passed the detention Order No. 13 of 2022 dated 18.10.2022 (for

short 'impugned order'), in terms whereof the petitioner namely Angoor

Choudhary S/O Nagina Choudhary R/O Bishan Purba W.No.04, Post

Office, B.B.Bankataba, P/S Bathbadia, District Champaran Bihar (for short

'detenue'), has been detained.

2. It is being pleaded in the petition that the detention order so passed against

the petitioner was not addressed to detenue which shows the callousness

and non-application of mind on the part of the detaining authority; that the

detaining authority has not mentioned a word in the detention order with

regard to the satisfaction drawn by it as to how it has come to the

conclusion of passing the detention order, but the respondents without the

application of mind and without considering the material on record had

issued and passed the impugned detention order which is illegal,

unjustified, unwarranted under law, as such, the same is liable to be

quashed; that the order of detention and the connected documents annexed

with the petition clearly show violation of right of the detenue guaranteed

in terms of Article 22 of the Constitution of India.

3. Pursuant to notice, respondent has failed to file counter affidavit despite

grant of several opportunities, however, learned counsel for the respondent

has orally opposed this petition. He submitted stated that the detenue was

ordered to be detained for maintenance of „public order‟ and had he been

let free, there would have been every likelihood of his indulging in further

criminal activities; that it has been reported by the Senior Superintendent of

Police, Railway Jammu vide dossier No. Rlys/Crime/2022/13506-09 dated

17.10.2022 that on 22.09.2022 patrolling party of RPF, Jammu received an

information about the presence of the detenue in the premises of Railway

Station, Jammu who, allegedly, served tea mixed with some intoxicants to

the railway passengers, and on this specific information, detenue was

tracked by RPF men and finally apprehended along with two railway

passengers who were totally in an unconscious state and these passengers

were immediately taken to hospital for treatment and when they regained

their consciousness, they revealed the entire episode, how they were

tempted and duped by the detenue, his deceptive act of offering tea to the

Railway passengers mixed with intoxicants made the passengers lost their

consciousness, enabling him to extort cash and other belongings of the

passengers; that the power of preventive detention is different from

punishment as the preventive detention is aimed at stopping the illegal

activities of an individual, which, otherwise, under common law both

criminal/civil cannot be stopped and the said individual would have created

havoc in the society, which leads to public disorder, disturbing peace,

stability; that petitioner‟s activities were threat to the public order, peace

and stability in the society. It is also being stated that the detenue being

involved in numerous criminal activities was not likely to desist from his

criminal activities, which were prejudicial to the maintenance of peace and

public order in District Jammu and other States also.

4. Learned counsel for the detenue, while being heard, making reference to

the grounds of the detention, would argue that on a cursory look on the

same, it is manifest that same are vague. It is also submitted that the

Detaining Authority on the basis of dossier submitted by Senior

Superintendent of Police, Railway Jammu, without application of mind and

without evaluating the allegations made against the detenue in the said

dossier, copy of which was not even provided to the detenue, proceeded to

pass impugned detention order, whereby the detenue has been detained and

directed to be lodged at Central Jail Kot, Jammu. It is also submitted that

the Detaining Authority has not mentioned in the detention order that the

detenue has right to make representation against the order of detention and

has not supplied the copies of the chargesheet/FIRs and material relied

upon by the Detaining Authority, so that the petitioner could make

effective and meaningful representation against the detention order to the

government, as such, the detention order is liable to be quashed.

5. Learned counsel for the respondent, ex adverso, submits that the record

reveals that there is no vagueness in the grounds of detention. All the

procedural safeguards prescribed under Act and the rights guaranteed to the

detenue under the Constitution, have strictly been followed in the instant

case. The detenue has been furnished all the material, as was required, and

was also made aware of his right to make representation to the detaining

authority as well as government, against his detention.

6. Heard learned counsel for both the sides at length and considered the

record.

7. The right of personal liberty is the most precious right guaranteed under the

Constitution. It has been held to be transcendental, inalienable

right available to a person. A person is not to be deprived of his/her

personal liberty except in accordance with procedures established under

law and the procedure as laid down in Maneka Gandhi v. Union of

India (1978 AIR SC 597), is to be just and fair. The personal liberty may be

curtailed, where a person faces a criminal charge or has been convicted of

an offence and sentenced to imprisonment. Where a person is facing trial

on a criminal charge and is temporarily deprived of his/her personal liberty

because of the criminal charge framed against him/her, has an opportunity

to defend himself/herself and to be acquitted of the charges, in case the

prosecution fails to bring home his/her guilt. Where such a person is

convicted of the offence, he/she still has the satisfaction of having been

given adequate opportunity to contest the charge and also adduce evidence

in his/her defence.

8. Nevertheless, 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 having been held guilty of an

offence and sentenced to imprisonment by a competent court. The 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/her plans, exposing the general public to risk and cause

colossal damage to life and property. It is, therefore, necessary to take

preventive measures and prevent the person bent upon perpetrating

mischief from translating his/her ideas into action. Article 22(5) of the

Constitution of India therefore leaves scope for enactment of preventive

detention law.

9. The detention record, as produced, reveals that the detenue was involved in

following cases registered at Police Stations, GRP Jammu and Pathankote

vide:-

(i) FIR No. 21/2017; U/S 328/379/511 RPC Act;

(ii) FIR No. 48/2018; U/S 25/54/59-A Act; and

(iii) FIR No. 13/2022; U/S 328 IPC.

Involvement of the detenue in the aforementioned cases appears to have

heavily weighed with the detaining authority while passing detention order.

10. The Hon‟ble Apex Court in the judgment rendered in the case of

"Hardhan Saha v. State of W.B" [(1975) 3 SCC 198], has succinctly

pointed out difference between preventive and punitive detention in the

following words:

"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 the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. 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 it is necessary for reasons mentioned in section 3 of the Act to prevent."

11. The conceptual framework of preventive detention has been reiterated

in "Khudiram Das v. State of W.B", [(1975) 2 SCR 832], as under:

"The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. Since every preventive measure is based on the principle that a person should be prevented from doing something which, if left free and unfettered, it is reasonably probable he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof."

12. In "Naresh Kumar Goyal v. Union of India", [(2005) 8 SCC 276], the

Court observed:

"It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the anti-social and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so."

13. Perusal of detention record reveals that detenue at the time of execution of

detention was provided copy of the detention order, copy of the grounds of

detention and other material. The detenue, as record would reveal, was also

informed as regards making of representation against the detention order if

he so desired, both to detaining authority and Government.

14. The grounds of detention are definite, proximate and free from any

ambiguity. The detenue has been informed with sufficient clarity what

actually weighed with the detaining authority while passing detention

order. The detaining authority has narrated facts and figures that made it to

exercise its powers under Section 8(1)(a) of the J&K Public Safety Act,

1978, and record subjective satisfaction that detenue was required to be

placed under preventive detention in order to maintenance of the public

order. The detaining authority has informed detenue that he is an accused in

three cases, in two of them involving the detenue offering tea to the

Railway passengers mixed with intoxicants, which made those passengers

unconsciousness, enabling him to extort cash and other belongings of the

passengers in the premises of Railway Station Jammu, which poses serious

and great threat to the general public. So viewed, the detenue is not to be

heard saying that any of his Constitutional and Statutory rights have been

violated while detention order in question was slapped on him and

thereafter executed.

15. In view of the foregoing discussion, it is clearly disclosed that it is not a

number of acts that are to be determined for detention of an individual, but

it is an impact of the act, which is material and determinative. In the instant

case, it is discernable that the act of the detenue relates to selling/offering

tea to the Railway passengers mixed with intoxicants, which made the

passengers lose their consciousness, enabling him to extort cash and other

belongings of the passengers in the premises of Railway Station, Jammu, as

such, the detenue has created a sense of alarm, scare and a feeling of

insecurity/fear in the minds of the public of the area. Thus, the activities of

the detenue are of criminal and habitual nature, as the main motive of the

detenue was to steal money as well as other belongings from the

passengers, by making them unconscious, as such, it was against the safety

of the general passengers including the pilgrims visiting the Shrine of Shri

Mata Vaishno Devi, hence, detenue has rightly been detained by the

respondent.

16. Having regard to the facts and circumstances of the case and discussion

made hereinabove, the petition is found to be devoid of any merit and

substance and is liable to be rejected. The petition is thus dismissed and the

impugned order relating to preventive detention of the detenue is upheld.

17. Detention record, as produced, be returned to the learned Dy AG.

(M A Chowdhary) Judge JAMMU 18.09.2023 Vijay

Whether the order is speaking: Yes Whether the order is reportable: Yes