Jammu & Kashmir High Court

Ghulam Rasool Alias Ghulami vs Ut Of J&K on 14 October, 2024

Author: Sindhu Sharma

Bench: Sindhu Sharma

  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                  AT JAMMU

                                                           HCP No. 05/2024

                                                Pronounced on: 14.10.2024

Ghulam Rasool alias Ghulami,                      .... Petitioner/Appellant(s)
Age 61 years,
S/o Shakur Din
R/o Nardka Panjgrain,
Tehsil Nagrota, District Jammu
(Through his son-Gafoor, Age 25 years,
S/o Ghulam Rasool alias Ghulami,
R/o Nardka Panjgrain,
Tehsil Nagrota, District Jammu)

                        Through:-        Mr. Altaf Hussain Janjua, Advocate.

                  V/s

1. UT of J&K,                                              .....Respondent(s)
   through
   Commissioner/Secretary,
   Home Department,
   Civil Sectt., Jammu/Srinagar
2. District Magistrate, Jammu.
3. Sr. Superintendent of Police, Jammu
4. Superintendent, Central Jail,
   Kot Bhalwal, Jammu

                        Through:-    Mr. Pawan Dev Singh, Dy. AG.
CORAM: HON‟BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                  JUDGMENT

01. The petitioner, through his son, has challenged the Order No. PSA

33 of 2023, dated 28.11.2023, whereby the District Magistrate, Jammu,

has placed him under detention with a view to prevent him from acting IN

any manner prejudicial to the maintenance of public order.

02. The impugned detention order has been assailed by the detenue on

the ground that the same suffers from total non-application of mind, as the

grounds of detention are verbatim of the dossier submitted by the Senior

Superintendent of Police, Jammu. The petitioner argues that the detention

order cites his involvement in several FIRs, all registered with Police

Station Nagrota, Jammu, including: FIR No. 64/2024 under Sections

392/354 RPC; FIR No. 161/2010 under Sections 341/323/34 RPC; FIR

No. 223/2011 under Sections 341/332/34 RPC; FIR No. 192/2013 under

Sections 341/323 RPC; FIR No. 252/2013 under Sections 341/323/34

RPC; FIR No. 276/2015 under Sections 452/341/323/147/504/506/382

RPC; and FIR No. 194/2023 under Sections 382/354/323/34 RPC.

03. It is further submitted by the detenue that the Detaining Authority has

not shown any awareness to the fact that in FIR No. 161/2010 registered

under Sections 341/323/34 RPC and FIR No. 252/2013 registered under

Sections 341/323/34 RPC, the Challan presented in these FIRs have been

dismissed in view of the compromise arrived between the detenue and the

complainant. The detenue was admitted to bail in FIR No. 64/2024, FIR No.

223/2011, FIR No. 192/2013, FIR No. 276/2015 and FIR No. 194/2023.

This fact has not been reflected in the order of detention, which shows that

there is total non-application of mind and the Detaining Authority was not

aware of the facts before passing the order of detention.

04. The detenue further submits that all material relied upon by the

Detaining Authority, including copies of FIRs, site plans, recovery memos,

and statements of witnesses recorded under Section 161 CrPC, has not been

supplied to him. As a result, the detenue was prevented from making an

effective representation to the Detaining Authority as well as to the

Government. The order of detention is, thus, illegal and ought to be quashed.

05. The respondents have filed their counter affidavit as well as

produced the relevant record.

06. The respondents submit that the petitioner is a hardcore criminal, a

desperate character, and a history-sheeter who habitually engages in acts

of violence, including molestation, burglary, land-grabbing, and other

criminal activities. It is further stated that, by virtue of his continuous

involvement in criminal activities, the detenue has instilled a reign of

terror among the peace-loving people of the area, and his actions are

prejudicial to the maintenance of public order. The respondents also

contend that all the statutory constitutional safeguards have been adhered

to by the Detaining Authority while passing the order of detention. The

impugned order of detention is, therefore, legal and valid. The

respondents' counsel has submitted that the grounds raised in this petition

are misconceived and devoid of merit.

07. Heard learned counsel for the parties and also perused the record.

08. The first ground argued by the learned counsel for the detenue is

that the Detaining Authority, while passing the order of detention, failed

to take into account the fact that the detenue was granted bail in FIR No.

64/2024, FIR No. 223/2011, FIR No. 192/2013, FIR No. 276/2015 and

FIR No. 194/2023. The order of detention has been passed on the basis of

aforesaid FIRs, without mentioning this important fact in grounds of

detention which exhibits total non-application of mind on the part of

detaining authority. This also reflects that detaining authority has not

meticulously examined the material record available before him while

passing the impugned order of detention which renders the same

unsustainable in law.

09. The Detaining Authority has also relied on two FIRs, i.e., FIR No.

161/2010 under Sections 341/323/34 RPC and FIR No. 252/2013 under

Sections 341/323/34 RPC, while passing the order of detention but has not

shown any awareness regarding the fact that the Challan proceedings in both

these FIRs were closed. This reflects that the order has been passed by the

Detaining Authority in a perfunctory manner without considering all the

relevant facts before arriving at a subjective satisfaction regarding the

necessity of detention.

10. In „Haroon Majid vs. State of J&K and another‟, 2005 (11) SLJ,

this Court has observed as under:

"The detaining authority must show awareness by application of mind particularly to the facts of the case while directing preventive detention as by his action the liberty of a citizen is curtailed. The law enjoins upon the detaining authority to be alive to all facts and circumstances of the case and on application of mind to all those facts and circumstances, the detaining authority has to be subjectively satisfied that the detenu is required to be put in preventive detention. In case all the facts are not brought before the detaining authority or the detaining authority is not aware of all the facts and circumstances, and without considering it, derives subjective satisfaction, it amounts to non-application of mind which is a patent incurable defect to sustain the detention order."

11. Similar issue also been considered by the Hon'ble Apex Court in

case titled "Anant Sakharam Raut vs. State of Maharashtra and

another" reported in AIR 1987 SC 137, which has been held in

paragraph 8 as under: -

"5. We do not think it necessary to go into all the grounds urged before us by the petitioner's counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made

aware at the time the detention order was made that the detenu had moved applications for fail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 and 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under-trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention."

12. The Detaining Authority, while passing the order of detention, has

passed the order on the premise that the detenue's activities were

prejudicial to the maintenance of public order, peace, and the integrity of

the Union Territory. The Detaining Authority appears uncertain as to

whether the detenue poses a threat to public order or to the security of the

State, as the provisions under the J&K Public Safety Act are distinct in

addressing these two separate grounds for preventive detention. The order

of detention is, thus, passed without any application of mind.

13. In light of the law laid down in the aforementioned cases and

applying the same to the facts of this case, it is clear that the detention

order is unsustainable.

14. Keeping in view the aforesaid discussion and without adverting to