Jammu & Kashmir High Court
Tariq Mehmood vs Ut Of Jammu & Kashmir Through Its 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. 75/2024
CM No. 2709/2024
Tariq Mehmood, aged 30 years,
S/o Mohd. Kabir,
R/o Village Nerojal,
Tehsil Thannamandi, District Rajouri
through his wife Sonai Rani, age 22 years
W/o Tariq Mehmood
R/o Village Nerojal
Tehsil Thannamandi, District Rajouri.
.....Petitioner
Through: Mr. C. S. Azad, Advocate
Vs
1. UT of Jammu & Kashmir through its
Principal Secretary, Home Department,
Civil Sectt., Jammu.
2. Director General of Police, J&K.
3. District Magistrate, Rajouri.
4. Senior Superintendent of Police, Rajouri.
5. District Jail Superintendent, Dangri, Rajouri.
..... Respondents
Through: Mr. Rajesh Thappa, AAG
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
01. Heard Mr. C. S. Azad, 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 Sonai Rani has filed this
writ petition on 13.05.2024 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),
Rajouri by virtue of communication No. PA/PSA/2023/6713-
16/C dated 01.07.2023 submitted a dossier to the respondent
No. 3 - District Magistrate, Rajouri 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), Rajouri came to refer the
petitioner to have created terror and law and order problem in the
area by his criminal activities and the petitioner was mentioned to
be habitual of committing theft/burglary prejudicial to the
maintenance of public order and safety/security of the lives and
properties of the citizens. In this reference, the respondent No. 4 -
Sr. Superintendent of Police, Rajouri came to refer to the
involvement of the petitioner in the following FIRs:-
Sr. FIR/Section of law Name of
No. Police Station
1. 320/2016 u/s 379 RPC Rajouri
2. 85/2017u/s307/353/341/323/225-B/147 RPC Thannamandi
3. 140/2020 u/s 452/354/323/34 IPC Thannamandi
4. 341/2021 u/s 08/21 NDPS Act Rajouri
5. 20/2023 u/s 457/380 IPC Nowshera
6. 51/2023 u/s 379/34 IPC Thannamandi
7. 54/2023 u/s 380 IPC Thannamandi
8. 85/2023 u/s 457/380 IPC Nowshera
9. 66/2023 u/s 382/323/147 IPC Satwari
In relation to the aforesaid FIRs, except FIR No. 66/2023,
the Police is said to have presented Final Police Reports/Challans
against the petitioner before the competent criminal court of law.
05. Acting upon the said dossier, the respondent No. 3 -
District Magistrate, Rajouri 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), Rajouri
without any shade of difference and thereby drawing purported
subjective satisfaction that the petitioner deserves to be detained
under section 8(1)(a)(i) read with section 8(2)(ii) of the Jammu &
Kashmir Public Safety Act, 1978 in order to prevent the petitioner
from acting in any manner prejudicial and detrimental to the
maintenance of the public order. A detention Order No.
DMR/INDEX/21 of 2023 dated 11.09.2023 (hereinafter to be
referred as "the detention order") came to be passed by the
respondent No. 3 - District Magistrate, Rajouri directing arrest of
the petitioner and his lodgment in District Jail, Dhangri.
06. The detention order came to be executed after almost six
months when on 27.03.2024 the petitioner came to be arrested
and detained by ASI Vijay Kumar, No. 956146/EXJ of Police
Station Thannamandi and handed over to the Superintendent
Jail, Dhangri. The petitioner is said to have been fully briefed
about the passing of the detention order, grounds of detention
and the basis thereof and for this purpose an execution report
came to be submitted by the Executing Officer - ASI Vijay Kumar.
07. Before filing of the writ petition, the petitioner is said to
have made a representation dated 12.04.2024 to the Principal
Secretary to Government, Home Department, Union Territory of
Jammu & Kashmir sent through registered post on 12.04.2024
against his misconceived detention.
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, Rajouri acted
on the dictates of the respondent No. 4 - Sr. Superintendent of
Police (SSP), Rajouri revealed from 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, Rajouri 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), Rajouri and the respondent No. 3
- District Magistrate, Rajouri 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 courts 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), Rajouri 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, Rajouri 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, Rajouri with fullness of
facts.
12. If left to the respondent No. 4 - Sr. Superintendent of
Police (SSP), Rajouri, even the copies of 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 Narcotic Drugs and Psychotropic Substances Act,
1985 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, Rajouri 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, Rajouri 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),
Rajouri.
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. DMR/INDEX/21 of 2023 dated 11.09.2023 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
