Jammu & Kashmir High Court
Atta Mohammad Reshi vs U.T Of Jammu And Kashmir on 24 April, 2024
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 29.12.2023
Pronounced on 24.04.2024.
HCP No. 25/2023
Atta Mohammad Reshi, age 47 years S/o Sh. ....Petitioner(s)
Nasrullah Reshi R/o Dellar Tehsil Chatroo
District Kishtwar.
Through his brother
Irshad Ahmad Reshi
S/o Nasrullah Reshi R/o Dellar Tehsil
Chatroo.
Through :- Mr. RKS Thakur, Advocate.
V/s
1. U.T of Jammu and Kashmir ....Respondent(s)
through Principal Secretary to
Govt Home Department, Civil
Secretariat, Srinagar/ Jammu
2. District Magistrate, Kishtwar, J&K.
3. Superintendent of District Jail,
Kishtwar J&K.
Mr. Bhanu Jasrotia, GA
Through :-
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
1. Heard learned counsel for the parties and perused the writ
pleadings and the record therewith.
2. This is a writ petition under Article 226 of the Constitution of
India filed by the petitioner acting through his brother
whereby the petitioner is seeking a writ of Habeas Corpus for
earning his release from his preventive detention custody
which he alleges to be illegal and unwarranted amounting to
violation of his fundamental right to personal liberty
guaranteed under Article 21 of the Constitution of India.
3. The petitioner came to be ordered to suffer preventive
detention by the respondent No. 2-District Magistrate,
Kishtwar by virtue of an Order No. 4th/DM/K/PSA of 2023
dated 08.06.2023 passed under Section 8(2) of the Jammu
and Kashmir Public Safety Act, 1978 by reckoning the
petitioner's alleged reported activities to be
harmful/prejudicial to the maintenance of public order and
upon his detention to be lodged in District Jail, Kishtwar.
4. In seeking a preventive detention order against the
petitioner, the respondent No. 2-District Magistrate,
Kishtwar was approached by the Senior Superintendent of
Police (SSP), Kishtwar with a dossier forwarded vide letter
No. CS/PSA/2023/6098-6102/C dated 10.05.2023 thereby
purportedly putting on record the material which, in the
assessment and opinion of the Senior Superintendent of
Police Kishtwar, makes out a case for preventive detention
order of the petitioner.
5. In the said dossier, the petitioner came to be projected as a
habitual bovine smuggler as part of an organized gang
operating from Chatroo, Kishtwar and other areas of the
District Kishtwar to Kashmir valley.
6. In connection with that, Senior Superintendent of Police
(SSP), Kishtwar came to refer to FIR No. 213/2015 under
sections 188 RPC read with Section 3 of the Prevention of
Cruelty to Animals Act, 1960 registered by the Police Station
Kishtwar, FIR No. 14/2016 under sections
452/336/188/147 RPC read with section 3 of the Prevention
of Cruelty to Animals Act, 1960 registered by the Police
Station Chatroo, FIR No. 47/2016 under sections 188 RPC
read with section 3 of the Prevention of Cruelty to Animals
Act, 1960 registered by the Police Station Chatroo and FIR
No. 19/2019 under sections 188 RPC read with section 11 of
the Prevention of Cruelty to Animals Act, 1960 registered by
the Police Station Chatroo.
7. By reference to all the aforesaid FIRs, the petitioner was
shown to be on bail but undergoing criminal trial before the
competent court of law in which regard, Police
Report/Challan No. 184/2015 dated 19.12.2016, Police
Report/Challan No. 13/2016 dated 28.04.2016, Police
Report/Challan No. 38/2016 dated 27.12.2016 and Police
Report/Challan No. 19/2019 dated 22.10.2019 were
mentioned.
8. The dossier did not cite any fresh incident related to the
petitioner's alleged involvement in linking his bent of
indulgences with his past alleged acts of indulgences so as to
pose a threat to maintenance of public order. In the dossier,
the Senior Superintendent of Police, Kishtwar did not divulge
as to what was the precipitating circumstance which
warranted a case for preventive detention of the petitioner by
co-relating to his past indulgences in reference to the
aforementioned four FIRs and criminal cases undergoing
trial against him.
9. The respondent No. 2-District Magistrate, Kishtwar came to
draw grounds of detention for his purported subjective
satisfaction proceeding upon the same set of references to
the FIRs and the criminal cases related therewith with no
latest input from the end of the Senior Superintendent of
Police, Kishtwar so as to reckon the petitioner a very potent
risk to maintenance of public order warranting his
preventive detention.
10. The preventive detention warrant of the petitioner came to be
executed on the petitioner by his arrest on 09.06.2023.
11. The passing of the preventive detention Order No.
4th/DMK/PSA of 2023 dated 08.06.2023 was followed by its
approval by the Home Department, Govt. of UT of Jammu
and Kashmir vide Govt. Order No. Home/PBV/1282 of 2023
dated 12.06.2023.
12. The petitioner's preventive detention case was referred to the
Advisory Board for its opinion which came to be forwarded
vide report dated 12.07.2023 confirming the petitioner's
detention to be justifiable as a result whereof the Govt. came
to pass an Order No. Home/PBV/1630 of 2023 dated
18.07.2023 thereby confirming the petitioner's detention for
a period of three months and his lodgement in District Jail,
Kishtwar which was followed by Govt. Order No.
Home/PBV/2012 of 2023 dated 01.09.2023 extending the
period of detention from first installment of three months to
an extension of three months further with the place of
detainment at District Jail, Kishtwar.
13. The petitioner has challenged his preventive detention in the
light of the position of law settled by the Hon'ble Supreme
Court of India in the cases of Banka Sneha Sheela Vs. State
of Telangans and ors reported in (2021) 9 SCC 415 and
Rekha Vs. State of Tamil Nadu reported in (2011) 5 SCC
244 terming his preventive detention to be illegal on the
enlisted grounds of challenge. The petitioner has relied upon
the judgments rendered by this Court in the cases of Gurdit
Singh @ Prince @ Pindi vs. UT of J&K reported in 2023
(5) JKJ [HC] and Umar Jan Vs. UT of J&K & anr reported
in 2023 (4) JKJ [HC] 74.
14. The very fact that the respondent No. 2-District Magistrate,
Kishtwar made use of the instances of repeated involvement
of the petitioner in committing the offences of like nature
reckoning from 2016 to 2019 to be a situation for drawing
his subjective satisfaction that the petitioner's personal
liberty needs to be curtailed by subjecting him to preventive
detention but had nothing to cite any fresh
incident/indulgence post 2019 relatable to last FIR No.
19/2019, to comment against the petitioner is reflective of
the fact that there was no fresh feed of facts made by the
Senior Superintendent of Police, Kishtwar making out a case
for preventive detention of the petitioner.
15. The Hon'ble Supreme Court of India in its judgment titled as
'Khaja Bilal Ahmed Vs. The State of Telangana' reported
in (2020) 13 SCC 632 in para 22 has =dealt with the fate of
a detention order passed on stale grounds holding that an
order which is founded on stale incidents must be regarded
as an order of punishment for a crime passed without a trial
though purporting to be an order of prevention detention. In
observing so, the Hon'ble Supreme Court of India has drawn
the core concept of preventive detention not to punish a
person for something done by him but to prevent him from
doing it.
16. The Hon'ble Supreme Court of India in the case of 'Ramesh
Yadav Vs. District Magistrate, Etah' reported in AIR 1986
SC 315 came to censure the passing of a detention order by
the detaining authority acting upon an apprehension that in
case the detenue was to get released on bail, he would carry
on his criminal activities in the area. The Hon'ble Supreme
Court of India came forward holding that if such was the
apprehension at the end of the detaining authority, then
legal course open to be availed is to oppose the bail
application and in case the bail granted, then to challenge
the order granting bail in the higher forum but not to resort
to preventive detention mode of detaining the detenue.
17. When examined in the light of the aforesaid position of law,
the facts and circumstances of the present case lead this
Court to an irresistible conclusion that the petitioner has
been punished by mode of preventive detention by the
respondent No. 2-District Magistrate, Kishtwar on account of
petitioner's alleged involvements in the enlisted FIRs and the
criminal cases emerging out of said FIRs pending disposal
before the various criminal courts.
18. Thus, this Court holds the preventive detention of the
petitioner to be misconceived and unwarranted as the same
is without any basis, factual as well as legal, and as such the
petitioner deserves to earn restoration of his fundamental
right to personal liberty and for that the detention order
passed against the petitioner deserves to be quashed.
19. For the reasons mentioned above, the petition is allowed and
the impugned detention order No. 4th/DM/K/PSA of 2023
dated 08.06.2023 passed by the respondent No. 2-District
Magistrate, Kishtwar is quashed. The petitioner is directed
to be released forthwith by the Superintendent Jail
concerned if not required in any other case.
(RAHUL BHARTI)
JUDGE
JAMMU
24.04.2024
Naresh/Secy.
Whether the order is speaking: Yes
Whether the order is reportable: Yes
....
