Jammu & Kashmir High Court
Sumit Jandyal Alias Gataru vs Union Territory Of Jammu & Kashmir ... on 10 October, 2024
Author: Rahul Bharti
Bench: Rahul Bharti
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on : 10.09.2024.
Pronounced on : 10.10.2024.
Case:- HCP No. 77/2024
Sumit Jandyal alias Gataru, Age 38 years,
S/o Sh. Om Parkash Gupta
Through his father
Sh. Om Parkash Gupta, Aged 68 years,
S/o Sh. Munshi Ram,
R/o Ward No. 9, Vijaypur, Samba.
.....Petitioner
Through: Mr. Himanshu Beotra, Advocate
Vs
1. Union Territory of Jammu & Kashmir through its Principal Secretary,
Department of Home, Civil Secretariat, Jammu/ Srinagar.
2. The District Magistrate, Samba.
3. The Senior Superintendent of Police, Samba.
4. The Superintendent, District Jail, Kathua.
..... Respondents
Through: Mr. Rajesh Thappa, AAG
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
JUDGMENT
01. Heard learned counsel for the petitioner as well as
Mr. Rajesh Thappa, learned AAG for the respondents. Perused the
pleadings and the record therewith. Also perused the detention
record produced by Mr. Rajesh Thappa, learned AAG.
02. The petitioner - Sumit Jandyal, acting through his father -
Om Parkash Gupta is invoking writ jurisdiction of this Court under
article 226 of the Constitution of India seeking a writ of habeas
corpus for restoration of his personal liberty which has come to be
curtailed with effect from 10.05.2024 pursuant to exercise of
preventive detention jurisdiction under the Jammu & Kashmir
Public Safety Act, 1978.
03. The respondent No. 3 - Senior Superintendent of Police
(SSP), Samba addressed a communication No. Legal/PSA/2024/
870-73 dated 01.05.2024 to the respondent No. 2 - District
Magistrate, Samba thereby laying a dossier with respect to the
petitioner seeking his preventive detention under the Jammu &
Kashmir Public Safety Act, 1978 by referring to the activities of the
petitioner as cited in the dossier highly prejudicial to the
maintenance of public order.
04. In the said dossier, the respondent No. 3 - Senior
Superintendent of Police (SSP), Samba came to portray the
petitioner to be a notorious, hard-core and habitual criminal
involved in many criminal offences including attempt to murder,
assault by using sharp edged weapons in carrying out the criminal
activities and thereby terrorizing the innocent citizens rendering his
activities being highly prejudicial to the maintenance of public
order. The petitioner is alleged to be operating a gang branded as
"Gataru Gang" with involvement of his brother and in rivalry with
opposite Gang known as "Khouf Gang".
05. The petitioner's alleged record of criminal activities are
related to FIR No. 52/2O24 U/S 399 IPC, 3/4/25 Arms Act of P/S
Vijaypur, FIR No. 67/2006 U/S 341/323/147 RPC of P/S Vijaypur,
FIR No. 15/2017 U/S 353/332/147 RPC of P/S Vijaypur, FIR No.
71/2019 U/S 341/323/34/427/506 RPC of P/S Vijaypur, FIR No.
177/2016 U/S 409/403/120-B RPC of P/S Gandhi Nagar and
lastly proceedings under section 107/117 Cr. P.C. of P/S Vijaypur.
06. The respondent No. 2 - District Magistrate, Samba without
availing even breathing time at his end came forward with an
instant issuance of a detention Order No. 15/PSA of 2024 dated
02.05.2024 next morning ordering preventive detention of the
petitioner under section 8 of the Jammu & Kashmir Public Safety
Act, 1978 in order to prevent the petitioner from indulging in
activities in any manner highly prejudicial to the maintenance of
public order. The petitioner was ordered to be detained in District
Jail, Kathua.
07. The aforesaid detention Order No. 15/PSA of 2024 dated
02.05.2024 is purportedly based upon the grounds of detention
formulated by the respondent No. 2 - District Magistrate, Samba in
order to come up with a subjective satisfaction that the acts of
omission and commission alleged against the petitioner afforded a
subjective satisfaction for ordering his preventive detention.
08. The grounds of detention so set out by the respondent No.
2 - District Magistrate, Samba and the dossier submitted by the
respondent No. 3 - Senior Superintendent of Police (SSP), Samba
are carbon copy of each other in text and context leaving no basis to
differentiate the two, factually & legally.
09. The preventive detention Order No. 15/PSA of 2024 dated
02.05.2024 passed by the respondent No. 2 - District Magistrate,
Samba came to be approved by the Govt. of UT of Jammu &
Kashmir through its Home Department vide Govt. Order No.
Home/PB-V/963 of 2024 dated 07.05.2024. At the time of passing
of this Govt. Order No. home/PB-V/963 of 2024 of approving the
preventive detention Order No. Order No. 15/PSA of 2024 dated
02.05.2024, the arrest and detention of the petitioner had not taken
place as it was on 10.05.2024 that the petitioner came to be
arrested and detained in execution of detention warrant by
Inspector Zaheer Mushtaq, No. EXJ109377 of Police Station
Vijaypur and handed over the person of the petitioner to the
Superintendent District Jail, Kathua for confinement and custody.
The petitioner is alleged to have been handed over with 79 leaves'
compilation of documents related to his preventive detention order
against receipt taken from the petitioner. The formality of reading
and explaining the detention order and the grounds of detention is
said to have been carried out by Inspector Zaheer Mushtaq of Police
Station Vijaypur at the time of carrying out the arrest and detention
of the petitioner.
10. It is on 16.05.2024 that the petitioner came forward with
the institution of the present writ petition challenging his detention
as being misconceived and unwarranted as an attempt to overreach
the ordinary course of law already set into effect against the
petitioner for all the cases put up against him before the criminal
courts of law.
11. The preventive detention case of the petitioner came to be
referred to the Advisory Board for it opinion, which in terms of its
opinion report dated 31.05.2024 reckoned the petitioner's
preventive detention justified, thus paving a way for approval of the
preventive detention order No. 15/PSA of 2024 dated 02.05.2024 by
virtue of a Govt. Order No. Home/PB-V/1295 of 2024 dated
12.06.2024which confirmed the detention of the petitioner to last at
the first instance for a period of three months upto 09.08.2024.
12. Before passing of this confirmation order, the petitioner's
custody came to be shifted from District Jail, Kathua to District Jail,
Poonch by virtue of Govt. Order No. Home/PB-V/1253 of 2024
dated 10.06.2024.
13. Upon expiry of the first three months of detention period on
09.08.2024, the period of detention of the petitioner came to be
extended by another three months with effect from 10.08.2024 to
09.11.2024 in District Jail, Poonch by virtue of Govt. Order No.
Home/PB-V/1622 of 2024 dated 07.08.2024 which period of
detention is still in its currency when this writ petition has come up
for its adjudication with respect to the legality of the preventive
detention of the petitioner.
14. The petitioner has, thus, served detention custody of five
months soon to be completed, out of maximum one year period of
detention prescribed with respect to maintenance of public order in
terms of section 18(1)(a) of J&K Public Safety Act, 1978.
15. The petitioner has assailed his preventive detention on
number of grounds by drawing reference from the judgments of the
Hon'ble Supreme Court of India as well as of this Court referred in
the writ petition itself.
16. The essence of the challenge to his preventive detention by
the petitioner is that the respondent No. 2 - District Magistrate,
Samba and the respondent No.3 - Senior Superintendent of Police
(SSP), Samba have intended to serve a punitive custody and
confinement upon the petitioner displacing the outcome of the
criminal trials in currency in all the cases as mentioned in the
dossier read with the grounds of detention, all of which are in the
realm of law and order and not in the arena of maintenance of
public order.
17. The petitioner has assailed the preventive detention being
an outcome of mechanical exercise at the end of the respondent No.
3 - Senior Superintendent of Police (SSP), Samba by reference to the
cases which do not provide any link whatsoever with maintenance of
public order and that while the petitioner was still in a judicial
custody, the detention order came to be passed without any
realization to said fact at the end of the respondent No. 3 - Senior
Superintendent of Police (SSP), Samba and the respondent No. 2 -
District Magistrate, Samba.
18. In order to lend support to the grounds of challenge, the
petitioner has referred to the citations of Hon'ble Supreme Court of
India in Rajesh Vashdev Advani V. State of Maharashtra, (2OO5) 8
SCC 4388,Rajendra Kumar V. State of Gujarat, AIR 1988 SC
1255,Mehboob V. Police Commissioner, AIR 1989 SC 18O3,Huidrom
Konungjao Singh V. State of Manipur; (2012) 7 SCC 181, Manjit
Singh Grewal V/s Union of India, 1990 (Supp) SCC 59, Kubic v.
Union of India, (1990) 2 SCJ 132, Additional Secretary V. Alka,
(1992) Supp (1) SCC 496,Kamlesh Kumar Ishwardas Patel V. Union
of India, (1995) 4 SCC 51, N. Sengodan V. State of Tamil Nadu,
(2013) 8 SCC 664,K.Kalawati V. State of Tamil Nadu, (2006) 6 SCC
14&A.K. Gopalan V. State of Madras, AIR I95O SC 27.
19. From the end of the respondents, the writ petition filed by
the petitioner has come to be contested by a counter affidavit dated
18.07.2024 which more or less follows the tone and tenor of the
dossier as well as the grounds of detention related to the preventive
detention of the petitioner. In the counter affidavit, it is admitted
that the petitioner came to earn an interim bail in connection with
his arrest in FIR No. 52/2024 registered with the Police Station
Vijaypur granted by the court of the Chief Judicial Magistrate,
Samba in terms of an order dated 09.05.2024 and that is how the
execution of the preventive detention warrant came to take
placeagainst the petitioner on 10.05.2024.
20. When this Court peruses the record, the fact comes out
that the respondent No. 3 - Senior Superintendent of Police (SSP),
Samba has come to refer to the fact of the petitioner being in police
custody in connection with his arrest in relation to FIR No. 52/2024
of the Police Station Vijaypur but without any full disclosure as to
when he came to be so arrested and is his custody under police
remand or judicial remand for the consumption of information of
the respondent No. 2 - District Magistrate, Samba to assess the
situation in totality under the compulsion of which the preventive
detention of the petitioner was being solicited by the respondent No
3 - Senior Superintendent of Police (SSP), Samba. In fact, there is
no factual input whatsoever coming forth or available in the dossier
that the respondent No. 3- Senior Superintendent of Police (SSP),
Samba was himself made aware of or apprised as to whether the
petitioner had applied and pressed for his bail in reference to FIR
No. 52/2024 before a criminal court or not.
21. This information may seem to be very innocuous so as to
have no relevance in the estimate of the respondent No. 3 - Senior
Superintendent of Police (SSP), Samba to be known to him for the
purpose of being shared with the respondent No. 2 - District
Magistrate, Samba but in the context of exercise of preventive
detention jurisdiction aimed against a person even this bit of
information is too important to be left out from being known and
being made known to the preventive detention order making
authority.
22. Therefore, it is probable that the respondent No. 3 - Senior
Superintendent of Police (SSP), Samba was fully aware of the fact
that the petitioner had applied for his bail before a criminal court of
law in connection with his arrest by reference to FIR No. 52/2024
which was likely to be granted to him and, therefore, in order to pre-
empt the release of the petitioner on bail, the respondent No. 3 -
Senior Superintendent of Police (SSP), Samba planned to generate a
dossier against the petitioner in order to somehow chain him in
confinement in order to frustrate his prospective release on bail by a
criminal court of law.
23. It is not a co-incidence that the respondent No. 3 - Senior
Superintendent of Police (SSP), Samba came forward with a dossier
dated 01.05.2024 which earned the preventive detention order
dated 02.05.2024 and as soon as the petitioner came to earn bail on
09.05.2024, he came to be pounced upon and detained pursuant to
preventive detention order so passed against him. It is this factor
which has vitiated the preventive detention custody of the petitioner
because the latent intent of the preventive detention of the petitioner
was to overreach the ordinary procedure of criminal law and thereby
inflict punitive like custody and confinement against the petitioner
as a sentence by resort to executive fiat under the garb of preventive
detention jurisdiction. But for this act of omission and commission
on the part of the respondent No. 3 - Senior Superintendent of
Police (SSP), Samba in deliberate withholding of a vital factual
aspect of the case related with the petitioner, this Court might have
considered salvaging the preventive detention pronounced upon the
petitioner.
24. In the light of the aforesaid facts and circumstances of the
case, the preventive detention of the petitioner is, thus, held to be
vitiated with an illegality of un-condonable nature thereby rendering
the preventive detention Order No. 15/PSA of 2024 dated
02.05.2024 passed by the respondent No. 2 - District Magistrate,
Samba read with consequent approval and conformation orders
passed by the Govt. of UT of Jammu & Kashmir with respect to the
preventive detention of the petitioner as illegal, warranting
restoration of public liberty to the petitioner. Therefore, this Court
quashes the said preventive detention order No. 15/PSA of 2024
dated 02.05.2024 along with approval and conformation order/s
and directs release of the petitioner from the preventive detention
custody by the concerned Superintendent of the District Jail,
Poonch or in whichever Jail the petitioner may be confined in
furtherance of the preventive detention order hereby being set aside.
25. Record file submitted by Mr. Rajesh Thappa, learned AAG
upon being scanned to be returned to him by the Registry of this
Court.
(RAHUL BHARTI)
JUDGE
JAMMU
10.10.2024
Muneesh
Whether the order is speaking: Yes
Whether the order is reportable : No
