Jammu & Kashmir High Court

Pankaj Singh vs Ut Of J&K Through The ... on 22 October, 2024

 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU

                                               Reserved on: 17.10.2024

                                             Pronounced on: 22.10.2024


HCP No. 3/2024

Pankaj Singh, aged 31 years
S/O: Gopal Singh
Through his mother namely
Babita Devi aged 53 years
W/O Gopal Singh
R/O: Village Kotli Mian Fateh,
Tehsil R.S. Pura Jammu
presently lodged at Cental Jail, Kot
Bhalwal, Jammu.

                                                      ....Petitioner(s)

                     Through: Mr. Tushar Kalsotra, Advocate.

                Vs

1. UT of J&K through the Commissioner-cum-Secretary,
   Department of Home Affairs, Jammu and Kashmir Government.
2. Deputy Commissioner (District Magistrate) Jammu.
3. The Senior Superintendent of Police, District Jammu.
4. Incharge, Central Jail, Kot Bhalwal, Jammu.

                                                  ..... Respondent(s)

                     Through: Mr. Rajesh Thappa, AAG.

CORAM: HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE

                                JUDGMENT

01. The petitioner Pankaj Singh detained in Central Jail

Jammu, through his mother, namely, Babita Devi has

invoked Article 226 of the Constitution of India for

maintaining this writ petition, so as to seek restoration of

his personal liberty which has come to suffer curtailment,

on account of a preventive detention order No. PSA 30 of

2023 dated 17.11.2023, passed by the respondent No. 2-

Deputy Commissioner (District Magistrate), Jammu in

exercise of power under Section 8 (1) (a) of the Jammu &

Kashmir Public Safety Act, 1978 (hereinafter to be referred

as „Act of 1978‟)

02. Briefly stated, facts which led to the preventive detention of

the petitioner are that the Senior Superintendent of Police

(SSP), Jammu came to forward a letter No.

CRB/Dossier/2023/62/DPOJ accompanied with a dossier

against the petitioner thereby soliciting jurisdiction of the

respondent No. 2-Deputy Commissioner (District

Magistrate), Jammu in exercise of power under Section 8

(1) (a) of the Act of 1978, to order detention of the petitioner

in order to prevent him from acting in any manner,

prejudicial to the maintenance of the public order.

03. The respondent No. 2 - District Magistrate Jammu, acting

upon the said dossier, came to pass Order No. PSA 30 of

2023 dated 17.11.2023 (for short 'detention order'),

thereby directing preventive detention of the petitioner

under section 8 (1) (a) of the Act of 1978 and his

confinement in Central Jail, Jammu. For the purpose of

passing the aforementioned detention order, the respondent

No. 2 - District Magistrate Jammu came to formulate and

frame grounds of detention so as to enable him to have a

subjective satisfaction that the personal liberty of the

petitioner was detrimental to the objectives as envisaged

under the Act of 1978.

04. Pursuant to notice, the respondent No. 2-District

Magistrate Jammu filed counter affidavit on 01.04.2024,

stating that the subjective satisfaction was drawn by the

detaining authority before the detention of the petitioner

under Preventive Detention Act which cannot be questioned

on the ground of insufficiency of the incriminating material

against the detenue; that the observance of the procedural

safeguards by the detaining authority leaves little scope for

the detenue to assail the impugned order; that keeping in

view the prejudicial activities of the detenue, his preventive

detention has been ordered so as to deter him from acting

and/or indulging in prejudicial activities, as such writ

petition merits dismissal; that the impugned order of

detention does not suffer from any malice or legal infirmity,

as such, challenge thrown to it is totally misdirected and

misconceived, hence on this score the writ petition merits

dismissal; that the petitioner has not approached with

clean hands, instead had tried to mislead this Hon'ble

Court by sheer misrepresentation of facts, on this score

also, the writ petition merits dismissal in limine; that the

writ petition raises disputed questions of facts, which

cannot be adjudicated upon in a writ petition before this

Court; that the respondents have observed all the

safeguards enshrined in Article 22(5) of the Constitution of

India as well as provisions of Jammu and Kashmir Public

Safety Act, 1978, while directing the detention of the

detenue, hence the writ petition deserves to be dismissed

and lastly it is submitted that the liberty of the detenue is

subservient to the welfare, safety and interest of society at

large and the respondent No. 2 has exercised the power

detaining the petitioner under PSA, within the ambit of the

law of the land by observing all the safeguards, as such the

writ petition deserves to be dismissed.

05. In the grounds of detention, the petitioner is referred to be

a hard core criminal, desperate character, history sheeter

and habitual of indulging in acts of violence such as

attempt to murder, stabbing, rioting, burglary, violation of

Arms Act and other criminal cases. The petitioner is also

referred to be involved in numerous criminal activities of

serious and heinous in nature, over a period of time and

has spread a reign of terror amongst the peace loving

people of the area and his anti-social activities are pre-

judicial to the maintenance of public order.

06. A perusal of the grounds of detention would show that

what weighed in the mind of the respondent No. 2-District

Magistrate, Jammu is the purported involvement of the

petitioner in the following cases :-

      S. No.   FIR No.    Under Sections

      1.       41/2010    307/323/324/34 RPC & 4/25 Arms Act registered at
                          Police Station, Miran Sahib, Jammu.

      2.       86/2010    302/307/323/147/148/149 RPC & 4/25 Arms Act

registered at Police Station, Police Station, Jammu.

3. 55/2015 341/323 RPC & 3/25 Arms Act registered at Police Station, Miran Sahib, Jammu.

4. 86/2015 341/323 RPC registered at Police Station, Miran Sahib, Jammu.

5. 21/216 3/25 & 4/25 Arms Act 34 RPC registered at Police Station, Miran Sahib, Jammu.

6. 70/2016 307/336 RPC & 3/25 Arms Act registered at Police Station, Bishnah, Jammu.

7. 160/2016 382 RPC & 3/25 I.A Act registered at Police Station, Bishnah, Jammu.

8. 42/2018 307/364/323/147/148 RPC & 4/25 Arms Act registered at Police Station, Bishnah, Jammu.

9. 183/2020 323/382 IPC registered at Police Station, Miran Sahib, Jammu.

10. 03/2021 307/147/109 IPC & 4/25 Arms Act registered at Police Station, Miran Sahib, Jammu.

11. 78/2022 3/25 Arms Act registered at Police Station, Miran Sahib, Jammu.

On the basis of the aforementioned FIRs, the petitioner

came to be subjected to impugned preventive detention

order, passed by the respondent No. 2.

07. The very fact that the respondent No. 2-District Magistrate,

Jammu has referred to the petitioner's involvement in the

aforesaid FIRs, ex-facie, show that all these FIRs have been

weighed heavily with the detaining authority to draw his

satisfaction to order preventive detention of the petitioner,

to prevent him from indulging into criminal activities

prejudicial to the maintenance of Public Order.

08. From a perusal of the record, it is apparent that the

petitioner was earlier detained twicely vide detention Order

No. 16 of 2016 dated 02.12.2016 and 12 PSA of 2022 dated

09.09.2022. Both these orders of detention were

challenged by the petitioner by filing HCP No. 14 of 2017

and WP(Crl) No. 74/2022. This Court vide orders dated

28.11.2017 and 17.07.2023 quashed both the detention

orders. What is important here is that in both the aforesaid

detention orders, the authorities concerned took the same

grounds by mentioning the same FIRs which the

respondent-authorities have relied upon in the present case

while ordering preventive detention order, against the

petitioner. This is total non-application of mind on the part

of the respondent No. 2 to issue impugned order while

ordering preventing detention of the petitioner on the same

references, regarding earlier detention orders which had

been quashed by this Court.

09. The Apex Court in case "Chhagan Bhagwan Kahar Vs.

N.L. Kalna and others" reported in AIR 1989 SC 1234,

while dealing with the similar issue as on hand, observed

that if the detention order is revoked or quashed, the

detaining authority cannot rely on the same grounds in

part also. In para 12 of the said judgment, the Apex Court

has held as under:

"12. It emerges from the above authoritative judicial pronouncements that even if the order of detention comes to an end either by revocation or by expiry of the period of detention there must be fresh facts of passing a subsequent order. A fortiori when a detention order is quashed by the Court issuing a high prerogative writ like habeas corpus or certiorari the grounds of the said order should not be taken into consideration, either as a whole or in part even, along with the fresh grounds of detention for drawing the requisite subjective satisfaction to pass a fresh order because once the Court strikes down an earlier order by issuing rule, it nullifies the entire order."

10. In view of the aforesaid facts and circumstances of the

case, the petition is allowed. As a result, the preventive

detention of the petitioner is held to be unwarranted,

arbitrary, misconceived and illegal. Accordingly, the

preventive detention Order No. PSA 30 of 2023 dated

17.11.2023 passed by the respondent No. 2 - District

Magistrate, Jammu is hereby set aside and the petitioner

is directed to be released from custody forthwith.

11. The respondent No. 2 - District Magistrate, Jammu as

well as the Superintendent of the concerned Jail, to

ensure release of the petitioner from the preventive

custody forthwith, unless the petitioner's custody is