Jammu & Kashmir High Court - Srinagar Bench
Shabir Ahmad Wani vs Ut Of J&K And Others on 15 March, 2024
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU &KASHMIR AND LADAKH
AT JAMMU
Reserved on: 02.03.2024
Pronounced on: 15.03.2024
HCP 46/2023
Shabir Ahmad Wani
... Petitioner/Appellant(s)
Through: Mr. Mohammd Ashraf Wani, Advocate
V/s
UT of J&K and others
... Respondent(s)
Through: Mr. Zahid Qais Noor, GA
CORAM: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
15.03.2024
1. Heard learned counsel for the petitioner as well as for the
respondents. Perused the writ pleadings and the documents
annexed therewith.
2. The petitioner through his father is maintaining this writ petition
seeking a writ of habeas corpus for quashment of preventive
detention slapped upon him and consequently restoration of his
personal liberty by the indulgence of this court.
3. The respondent no. 2 - District Magistrate Pulwama came to be
approached by the respondent 3 - Senior Superintendent of Police
(SSP), Awantipora through a dossier no. Conf/PSA/2023/569-72
dated 15.06.2023 concerning the petitioner projecting his alleged
activities prejudicial to the maintenance of Public Order warranting
his preventive detention.
4. In response to this dossier from the respondent no. 3 - Senior
Superintendent of Police, Awantipora, the respondent no. 2 -
District Magistrate Pulwama came to draw grounds of detention
warranting the petitioner's preventive detention under J&K Public
Safety Act, 1978.
5. In the grounds of detention, the factual aspect being related to the
petitioner's alleged acts of omission and commission prejudicial to
the maintenance of Public Order is that the petitioner along with
his accomplice were luring the students and their families in the
name of providing fake question papers for B. Sc. Nursing Exams
scheduled to be conducted by the J&K Board of Professional
Entrance Examinations for the year 2023 and under that guise
extracted and extorted huge money from the gullible students and
their parents. This scam resulted in registration of an FIR no.
53/2023 with the Police Station Tral for alleged commission of
offences under section 420 and 120-B of the Indian Penal Code.
6. It is by reference to this alleged clandestine duping of students and
their parents by the petitioner and his alleged accomplice that the
respondent 2 - District Magistrate Pulwama read the petitioner in a
profile that he is an active member of a gang indulging in cheating
and defrauding the innocent students under the lure of providing
them question papers and by such fraud, cheating and forgery are
leaving the gullible students as his victims.
7. The dossier submitted by the respondent 3 - Senior Superintendent
of Police, Awantipora and the grounds of detention are in mirror
image of each other and the salient feature of the entire case for the
preventive detention of the petitioner is the registration of FIR
53/2023.
8. Neither the dossier nor the grounds of detention further divulge as
to what course of action came to take place in furtherance of
registration of the FIR no. 53/2023 under sections 420 and 120-B
of the IPC against the persons named in the said FIR as accused
persons. It is the petitioner, who in his representation, came to
disclose that he was arrested on 11.06.2023 by reference to the FIR
no. 53 of 2023 and came to be granted interim bail by Judicial
Magistrate 1st Class, Tral on 16.6.2023 but despite that he was not
let free by the Police till the issuance of the detention order against
him thereby getting him under preventive detention custody to be
lodged in Central Jail Kotbalwal, Jammu.
9. This one fact comes staring at the dossier served by the respondent
3 - Senior Superintendent of Police, Awantipora and the grounds
of detention as claimed by respondent 2 - District Magistrate
Pulwama to be in support of preventive detention order against the
petitioner which brought him under preventive detention custody
now lasting for more than eight months. The total detention period
under section 18(1)(a) under J&K Public Safety Act, 1978 is 12
months from the date of detention. Otherwise also, the alleged acts
of omission and commission on the part of the petitioner which has
led to his booking in FIR 53/2023 under section 420 read with
section 120-B of the IPC cannot be read to be prejudicial to the
maintenance of public order as the alleged acts of omission and
commission on the part of the petitioner and his accomplice, at the
best, could be a law and order problem for which routine criminal
law is meant to serve the purpose for the purpose of procuring the
offender to law and get him convicted and punished accordingly.
Preventive detention mode cannot be used as a substitute for
detention what punitive detention is meant to serve by following
regular course of law in the form of a criminal trial of a case and
getting the judgment of conviction against the accused persons.
10. In this regard, the Hon'ble Supreme Court of India in case titled as
Ayya alias Ayub versus State of UP reported in 1989 AIR SC
364, in para 12 has dealt with the Public Order & Law and order
dynamics by reference to understanding of the matter as carried out
the Constitution Bench of the Hon'ble Supreme Court of India in
Ram Manohar Lohia Vs. The State of Bihar and another, 1966
AIR SC 740.
11. In the case of K. K. Saravana Babu Vs. State of Tamil Nadu
and another, 2008 (9) SCC 80, the Hon'ble Supreme Court has
kept the distinction between Public Order and Law & order in
sharp perspective by taking stock of catena of decisions on this
aspect. By referring to the Constitution Bench judgment in the case
of Brij Bhushan and another vs. The State of Delhi (1950) SCR
605, in which Public Order is paraphrased in the context of "Public
Tranquility", the Hon'ble Supreme Court has not let Law & order
situation get colour and contour of "Public Order" to slap
preventive detention.
12. By bearing in mind the precepts so settled, the present case is also
case of Law & order whereby the petitioner came to be booked and
there was no occasion for the District Magistrate, Pulwama to
curtail the personal liberty of the petitioner by resort to J&K Public
Safety Act, 1978.
13. In the light of the aforesaid, the detention order no.
45/DMP/PSA/23 dated 26.06.2023 passed by the respondent 2 -
District Magistrate, Pulwama against the petitioner is held to be
unwarranted, and, therefore, the said order is set aside. The
Superintendent of the Jail concerned, where the petitioner is being
detained, is directed to set the petitioner free.
14. Disposed of.
(RAHUL BHARTI)
JUDGE
Srinagar
15.03.2024
N Ahmad
Whether the order is speaking: Yes
Whether the order is reportable: Yes
