Jammu & Kashmir High Court
Shubham Gill @ Maya vs Union Territory Of Jammu & Kashmir on 7 August, 2024
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 01.08.2024
Pronounced on : 07.08.2024
Case:- HCP No. 76/2024
CM No. 2835/2024
Shubham Gill @ Maya, age 30 years
S/o Late Pawan Gill, R/o H. No. 105, Dogra Hall, Jammu
Tehsil & District, Jammu (through his wife)
Maria Gill, age 28 years W/o Shubham Gill @ Maya
R/o H. No. 105, Dogra Hall Jammu, Tehsil & District Jammu.
.....Petitioner
Through: Mr. Tayyab Javed Qureshi, Advocate
Vs
1. Union Territory of Jammu & Kashmir
Through its Commissioner/Secretary,
Home Department, Civil Secretariat, Srinagar.
2. Director General of Police, J&K Jammu.
3. District Magistrate, Jammu.
4. Sr. Superintendent of Police (SSP), District Jammu.
5. Superintendent of Police (SP), District Jammu.
6. Station Houser Officer, Police Station Pacca Danga, Jammu.
..... Respondents
Through: Mr. Rajesh Thappa, AAG
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
01. Heard Mr. Tayyab Javed Qureshi, learned counsel for the
petitioner and Mr. Rajesh Thappa, learned AAG for the
respondents. Perused the writ pleadings along with the annexed
documents. Perused the detention record produced by Mr. Rajesh
Thappa, learned AAG.
02. The petitioner through his wife Maria Gill has filed this
writ petition on 15.05.2024 being in a state of preventive
detention and seeking his release from the custody by issuance of
a writ of habeas corpus.
03. The respondent No. 4 -Sr. Superintendent of Police (SSP),
Jammu by virtue of a communication No. CRB/Dossier/2024/
18/DPOJ dated 29.01.2024 submitted a dossier to the
respondent No. 3 - District Magistrate, Jammu thereby seeking
exercise of jurisdiction under the Jammu & Kashmir Public
Safety Act, 1978 for slapping preventive detention against the
petitioner.
04. In his said dossier the respondent No. 4 - Sr.
Superintendent of Police (SSP), Jammu came to refer the
petitioner as a hard core criminal who has been involved in
various criminal offences by blatantly violating the rule of law
indulging in attempt to murder, assault, snatching, burglary,
violation of arms rules, and other criminal activities. The
petitioner is referred to be involved in numerous criminal
activities of serious and heinous nature over a period of time
thereby spreading a reign of terror amongst the peace loving
people of the area by which anti-social activities the maintenance
of public order was found to be a risk. In this reference, the
respondent No. 4 - Sr. Superintendent of Police, Jammu came to
refer to the involvement of the petitioner in the following FIRs:-
a) FIR No. 46/2015 u/s 395 RPC of P/s Bus Stand.
b) FIR No. 59/2015 u/s 341/323 RPC of P/s City.
c) FIR No. 105/2017 u/s 341/323 RPC of P/s Pacca Danga.
d) FIR No. 117/2017 u/s 307/341/323 RPC of P/S Pacca Danga.
e) FIR No. 140/2018 u/s 341/323/504/506 RPC of P/s Pacca
Danga.
f) FIR No. 139/2019 u/s 341/323 RPC of P/S Pacca Danga.
g) FIR No. 76/2023 u/s 452/323/147 IPC & 4/25 Arms Act of P/S
Nagrota.
h) FIR No. 04/2024 u/s 427 IPC & 4/25 Arms Act of P/S Peer Mitha.
05. Acting upon the said dossier, the respondent No. 3 -
District Magistrate, Jammu came to formulate the grounds of
detention literally following line by line the dossier submitted by
the respondent No. 4 - Sr. Superintendent of Police (SSP), Jammu
without any shade of difference and thereby drawing subjective
satisfaction that the petitioner deserves to be detained under
section 8(1)(a) of the Jammu & Kashmir Public Safety Act, 1978
in order to prevent the petitioner from acting in any manner
prejudicial to the maintenance of the public order. A detention
Order No. PSA - 06 of 2024 dated 30.01.2024 (hereinafter to be
referred as "the detention order") came to be passed by the
respondent No. 3 - District Magistrate, Jammu directing arrest of
the petitioner and his lodgment in Central Jail, Kot Bhalwal,
Jammu.
06. The detention order came to be executed on 31.01.2024
when the petitioner came to be arrested and detained by PSI
Ashfaq Ahmad, PID No. EXJ-196285 of Police Station Pacca
Danga and handed over to Superintendent, Central Jail, Kot
Bhalwal, Jammu. The petitioner is said to have been fully briefed
about the passing of the detention order, grounds of detention
and the basis thereof for this purpose execution report came to be
submitted by the Executing Officer - PSI Ashfaq Ahmad.
07. Before filing of the writ petition, the petitioner is said to
have made a representation dated 14.03.2024 to the Principal
Secretary to Government, Home Department, Union Territory of
Jammu & Kashmir sent through registered post on 14.03.2024.
08. In his writ petition, the petitioner has assailed his
preventive detention to be bad in the eyes of law on account of the
fact that the respondent No. 3 - District Magistrate, Jammu acted
on the dictates of the respondent No. 4 - Sr. Superintendent of
Police (SSP), Jammu in the manner in which the dossier and the
grounds of detention are set out. The detention of the petitioner is
challenged to be without any lawful justification and basis.
09. This Court has perused the detention record produced by
the respondent No. 3- District Magistrate, Jammu from his end.
10. It is by reference to the FIRs that the petitioner has been
branded to be a habitual offender and thus posing a threat to
maintenance of public order. The respondent No. 4 - Sr.
Superintendent of Police (SSP), Jammu and the respondent No. 3
- District Magistrate, Jammu have taken the liberty of diverting
the routine criminal procedure of law to inflict punitive
punishment upon the petitioner through the mode of Jammu &
Kashmir Public Safety Act, 1978 and in the process bye-passing
the criminal court seized of the criminal trials of the petitioner
vis-à-vis the FIRs rendering the trial just a mere empty formality
as if not meant for holding guilty.
11. The respondent No. 4 - Sr. Superintendent of Police
(SSP), Jammu in his dossier at no point of time while serving his
dossier ever took the trouble of knowing for the sake of apprising
the respondent No. 3 - District Magistrate, Jammu as to what
was the status of the pending trials of the petitioner in the
context of grant/non-grant of bail, the basis of grant/non-grant of
bail, the stage at which criminal trial was held up etc, so as to
brief the respondent No. 3 - District Magistrate, Jammu with
fullness of facts.
12. If left to the respondent No. 4 - Sr. Superintendent of
Police (SSP), Jammu, even copies of the Challans/Final Police
Reports would not have been forwarded and the purpose for
seeking preventive detention of the petitioner would have been
attained by just simply referring to the number of FIRs against
the petitioner.
13. In all the FIRs, the petitioner is related to alleged
commission of offences which are in the domain of Indian Penal
Code or the Arms Act, 1959 which in no manner relates to the
"maintenance of public order" per-se. At the most the petitioner's
alleged activities are related to law and order problem for which
the legal course of action under Cr. P.C. is the only due process of
law for dealing with the petitioner.
14. The preventive detention is not to be taken and used to
be a readymade substitute for handing out a pre-trial punition to
a person even if such a person is involved in repeat commission of
offences under Indian Penal Code so long as the offences are not
related to disturbance of public order scenario. The respondent
No. 3 - District Magistrate, Jammu in the grounds of detention
has nowhere made a whisper of reference as to how the petitioner
in the face of the alleged commission of offences can be said to be
disturbing maintenance of public order. The subjective
satisfaction so drawn by the respondent No. 3 - District
Magistrate, Jammu is, thus, nothing but mechanical exercise at
his end reckoning his discretion to be subservient to the demand
of the respondent No. 4 - Sr. Superintendent of Police (SSP),
Jammu.
15. In view of the aforesaid facts and circumstances of the
case, the prevention detention of the petitioner effected by virtue
of an Order No. PSA - 06 of 2024 dated 30.01.2024 read with
consequent approval and confirmation order/s passed, if any, by
the Govt. of UT of Jammu & Kashmir are held to be bad and are,
accordingly, quashed. The petitioner is restored to his personal
liberty unless the petitioner's custody is required in any other
criminal case pending trial or investigation, in which eventuality
the petitioner to be handed over to the concerned Police Station
wherein his arrest and custody is solicited, otherwise the
petitioner to be set free to his personal liberty by the
Superintendent of the Jail concerned.
16. Disposed of.
17. Detention record to be returned back to Mr. Rajesh
Thappa, learned AAG by the Registrar Judicial, Jammu.
(RAHUL BHARTI)
JUDGE
JAMMU
07.08.2024
Muneesh
Whether the order is speaking : Yes
Whether the order is reportable : No
