Jammu & Kashmir High Court

Rohit Baloria vs Union Territory Of J&K on 30 October, 2024

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                AT JAMMU

Reserved on:   17.10.2024
Pronounced on: 30.10.2024

HCP No. 107/2024
CM No. 4379/2024


1. Rohit Baloria,                                  .....Appellant(s)/Petitioner(s)
   Age 24 years S/O Sh. Ghopal
   Krishan Baloria R/O Ward No. 11,
   Tehsil Vijaypur and District Samba.
   Th. Sudesh Kumari (Mother)
   Age 47 years, W/O Sh. Ghopal
   Krishan Baloria R/O Ward No. 11,
   Tehsil Vijaypur and District Samba


                     Through: Mr. Deepak Mahajan, Advocate.
                Vs
1. Union Territory of J&K                                  ..... Respondent(s)
   Th. Principal Secretary, Home
   Department, Civil Secretariat, Jammu,
   J&K, 180001
2. District Magistrate, Samba
   District Administration Complex
   Samba, 184121
3. The Senior Superintendent of Police
   (SSP) Samba
   District Police Headquarters, Samba
4. The Superintendent of District Jail,
   Udhampur, J&K
                     Through: Mr. Rajesh Kumar Thapa, AAG.

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                               JUDGMENT

1. The petitioner has filed the instant petition through his mother for

assailing the order No. 11/PSA of 2024 dated 10.04.2024 (for short the

"Detention Order") passed by the respondent No. 2 (for short the

"Detaining Authority"), whereby the petitioner has been ordered to be

detained under the J&K Public Safety Act (for short "the Act").

2. It is stated that the petitioner has remained under medical treatment for the

drug de-addiction at Parivartan Nursing Home and De-Addiction Centre,

Garhi P.O. Domana Jammu for about seven months i.e. from 01.05.2023

to 22.12.2023, and has never indulged himself in any illegal activity

during that period but was arrested from his house on 15.05.2024. The

petitioner has assailed the order of detention on the following grounds:

i. That the impugned detention order is verbatim reproduction of

the dossier submitted by the detaining authority.

ii. That out of three FIRs relied upon by the Detaining Authority

for detaining the petitioner, the Investigating Agency has not

been able to conclude the investigation in FIR No. 71/2022 and

FIR No. 26/2023, but this fact has not been taken into

consideration by the Detaining Authority while issuing the order

of detention.

iii. That the petitioner had remained under medical treatment as

mentioned above for a period of seven months, which clearly

shows that the impugned order has been issued by the Detaining

Authority without application of mind.

iv. That the petitioner had submitted a representation dated

12.07.2024 against his detention before the Advisory Board, but

the same was not considered by the Advisory Board.

v. That the petitioner was not supplied with the legible and

translated copies of the documents relied upon by the Detaining

Authority, as such, the valuable right of the petitioner to make

an effective representation was snatched by the Detaining

Authority, which amounts to violation of Article 22(5) of the

Constitution of India.

vi. That no explanation has been tendered by the respondents in

respect of the delay in executing the detention order, as there is

delay of 35 days in executing the order of detention.

3. The respondent No. 2 has filed the counter-affidavit, stating therein that

the respondent No. 3 had submitted a dossier dated 08.04.2024 thereby

recommending the detention of the petitioner under the Act, keeping in

view the continuous and repeated involvement of the petitioner in criminal

activities and after due application of mind, the petitioner was detained

under preventive detention in terms of the Act. The petitioner is a criminal

minded person, who is involved in various criminal activities, as such, is a

threat to the life of the people. The Detaining Authority has mentioned

three FIRs and preventive measures (Istghasa) initiated under Section

107/117 of Cr. P.C. by the Police Station, Vijaypur to justify the order of

detention. It is also pleaded that the petitioner is a member of Gataru

Gang, which is active in Vijaypur and Ramgarh areas of District Samba.

The petitioner is not only disturbing the peace of the area but has also

created multiple law and order problems in the area. The respondent No. 2

has also averred in the counter affidavit that the warrant of detention was

executed by the Inspector-Zaheer Mushtaq, SHO, Police Station, Vijaypur

and in his execution report he has stated that the grounds of detention were

read over and explained to the petitioner in Urdu, Hindi and Dogri

languages, which he fully understood and in token thereof, he had also

signed the execution report. Moreover, the petitioner was informed that he

could make a representation to the Government against the order of

detention, if he desired to do so. The Detaining Authority has further

stated that the order of detention was issued after perusing the material

submitted to him by the SSP, Samba and the Home Department vide order

dated 15.04.2024 also approved the detention order. Further, the Home

Department vide order dated 12.06.2024 has confirmed the order of

detention dated 10.04.2024. In nutshell, the stand of the respondents is that

the order of detention has been issued and executed in accordance with

law.

4. Mr. Deepak Mahajan, learned counsel for the petitioner has submitted that

the grounds of detention are the verbatim reproduction of the dossier

submitted by the respondent No. 3. He further submitted that the

representation submitted by the petitioner was not considered by the

Advisory Board and the material relied upon by the Detaining Authority

was not supplied to the petitioner, which deprived the petitioner of his

valuable right to make an effective representation. Learned counsel for the

petitioner has further argued that in fact the petitioner has been detained

on stale grounds and three preventive detention measures allegedly

mentioned in the grounds of detention nowhere demonstrate that the

petitioner had indulged in illegal activities.

5. Mr. Rajesh Kumar Thapa, learned AAG appearing on behalf of the

respondents has submitted that the petitioner was provided whole of the

material relied upon by the Detaining Authority for the purpose of issuing

the order of detention and the petitioner in acknowledgement thereof has

signed the execution report. He has further submitted that the petitioner

did not make the representation either to the Government or to the

Detaining Authority and the representation submitted by the petitioner to

the Advisory Board and that too after the order of detention was

confirmed by the Advisory Board, is inconsequential in nature. He has

further submitted that there is no force in the submission made by the

learned counsel for the petitioner that the grounds of detention are

verbatim reproduction of the dossier.

6. Heard learned counsel for the parties and perused the record.

7. The first contention raised by the learned counsel for the petitioner is that

the grounds of detention are the verbatim reproduction of the dossier

submitted by the respondent No. 3 to the Detaining Authority for the

purpose of issuance of the detention order. This Court has perused the

grounds of detention and also the dossier submitted by the respondent No.

3 and after comparing the same, this Court finds that there is no force in

the contention raised by the learned counsel for the petitioner that the

grounds of detention are the verbatim reproduction of the dossier

submitted by the respondent No. 3 to the Detaining Authority, as such, this

contention is rejected.

8. The second contention raised by the learned counsel for the petitioner is

that the material relied upon by the Detaining Authority for the purpose of

detaining the petitioner under the Act was not provided to the petitioner.

After perusing the detention record, more particularly the execution report

dated 16.05.2024, this Court finds that the petitioner was provided with

the copy of detention order, letter addressed to the petitioner, grounds of

detention and other documents comprising of 101 leaves and the petitioner

has acknowledged the same by signing the execution report dated

16.05.2024 prepared by Inspector-Zaheer Mushtaq. More so, in the receipt

of grounds of detention also, duly signed by the petitioner, it is

specifically mentioned that 101 leaves were provided to the petitioner and

the grounds of detention were read over and explained to the petitioner in

English, Urdu, Hindi and Dogri language, which the petitioner fully

understood. Therefore, there is no force in this contention raised by the

petitioner, as such, the same is rejected as well.

9. The third contention raised by the learned counsel for the petitioner is that

the petitioner has been detained on stale grounds and the three preventive

measures relied upon by the respondent No. 2 nowhere demonstrate that

the petitioner had indulged in any illegal activity. A perusal of grounds of

detention demonstrate that the petitioner was found to be involved in FIR

No. 148/2022 under Sections 307/382/147/323 IPC and 3/4/25 Arms Act

registered with Police Station Bishnah in respect of the incident which

took place on 03.09.2022, FIR No. 71/2022 under Sections

307/323/147/148/149 IPC and 4/25 Arms Act registered with Police

Station, Ramgarh in respect of the incident which took place on

29.07.2022 and FIR No. 26/2023 under Sections 504/506 IPC and 3/4/25

Arms Act registered with Police Station Vijaypur in respect of the incident

which took place on 21.02.2023 and thereafter till the passing of order of

detention dated 10.04.2024, no illegal activity has been attributed to the

petitioner.

10. A perusal of the proceedings initiated under Section 107/117 of Cr. P.C.

reveals that there are three entries made in the general diary in respect of

preventive action i.e. GD No. 20 dated 19.12.2023, GD No. 006 dated

16.01.2024 and GD No. 016 dated 23.02.2024. In all these three GD

entries in respect of proceedings initiated against the petitioner under

Section 107/117 of Cr. P.C. references have been made only to three FIRs

i.e. FIR No. 148/2022, FIR No. 71/2022, FIR No. 26/2023 and no other

illegal activity has been attributed to the petitioner after 21.02.2023.

Further, the respondents are silent in respect of the outcome of the

proceedings initiated by them under Section 107/117 of Cr. P.C, as the

respondent No.2 has mentioned in the grounds of detention that the

complaints have been filed before EMIC, Vijaypur. There is no whisper as

to what the outcome of the proceedings initiated under section 107,117

Cr.P.C, was. In LPA No. 158/2024, titled 'UT of J&K and Ors. Vs.

Aftab Hussain Dar' decided on 13.08.2024, the Division Bench of this

Court has observed as under:

"It is evident that the Detaining Authority has acted as a mouthpiece of the sponsoring agency by ordering the detention of the respondent under the J&K Public Safety Act, 1973. Even if, we condone this un-condonable lapse on the part of the Detaining Authority, still we find that even the proceedings of the Executive Magistrate 1st Class, Rajpora in respect of binding down the respondent were never submitted to the Detaining Authority. The consequences for breach of the bond have been provided under the Code but no material was placed before the appellant No.2 as to whether respondent was proceeded against in termsof the Code or not. How the Detaining Authority derived its subjective satisfaction that the bound down order passed by the Executive Magistrate 1st Class, Rajpora under section 107/151 of the Code did not produce the desired results, remains an unsolved mystery even before us. The learned writ court after examining the detention record, has also come to the same conclusion that the Detaining Authority is absolutely silent as to how the bond, if any, executed by the respondent and his surety came to be breached by them, by allegedly re-engaging in the illegal activities so as to warrant issuance of order of detention against him. We do not find any perversity or illegality in the finding returned by the writ court."

(emphasis added)

11. Learned counsel for the petitioner is right in his submission that the

petitioner has been detained on stale grounds, as no illegal activity has

been attributed to the petitioner after 21.02.2023. There is delay of more

than one year in passing the order of detention. This gap of one year has

snapped the live-link between the prejudicial activities and the passing of

detention order. The delay in passing the detention order renders the same

illegal. Reliance is placed upon the decision of the Apex Court in

"Laxhman Khatik vs. State of Bengal", 1974 (4) SCC 1, wherein while

considering the detention order under the Maintenance of Internal Security

Act, 1971, it has been held that prompt action in such matter should be

taken as soon as the incidents like those which are referred to in the

grounds have taken place.

12. It would also be apt to take note of the judgment of the Apex Court in case

titled, "Saeed Zakir Hussain malik vs. State of Maharashtra", (2012) 8

SCC 233. The relevant paragraph Nos. 27 and 28 read as under:

"27) As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned.

28) It is also the duty of the court to investigate whether casual connection has been broken in the circumstance of each case.

We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on detenu, there is no need to go into the factual details."

13. Viewed thus, what has been observed, considered and analysed

hereinabove, the petition is allowed, as a consequence whereof order of

detention bearing No. 11/PSA of 2024 dated 10.04.2024 passed by the

respondent No. 2, whereby the petitioner has been ordered to be detained

under preventive detention in terms of J&K Public Safety Act is quashed,

with the direction to the respondents including the concerned jail authority

to release the petitioner from preventive detention forthwith, unless he is

required in any other case.

14. The detention record produced by the counsel for the respondents be

returned back.

15. Disposed of.

(RAJNESH OSWAL) JUDGE