Kulbir Bhagat @ Rinku Kumar vs Union Territory Of J&K Through
2025 Latest Caselaw 933 J&K

Jammu & Kashmir High Court

Kulbir Bhagat @ Rinku Kumar vs Union Territory Of J&K Through on 13 February, 2025

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

        HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT JAMMU

                                          Reserved on: 06.02.2025
                                          Pronounced on:13.02.2025
Case:-       HCP No. 152/2024

Kulbir Bhagat @ Rinku Kumar, Age 26
years S/o Bhushan Lal
R/o Village Langotia, Miran Sahib Tehsil
R.S.Pura, District Jammu through his sister
Sunita Kumari, age 40 years                                 .....Petitioner/Detenue(s)

                       Through: Mr. Jagpaul Singh, Advocate

                   Vs
      1. Union Territory of J&K through                           ..... Respondent(s)
         Commissioner-cum- Secretary to
         Government, Home Department, Civil
         Secretariat, Jammu.
      2. District Magistrate, Jammu
      3. Senior Superintendent of Police, Jammu
      4. Superintendent, Central Jail Kot
         Bhalwal, Jammu.

                       Through: Mr. Rajesh Thappa, AAG

Coram:       HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE

                                    JUDGMENT

01. In the instant petition, the detenue herein, through his sister namely

Sunita Kumari, has challenged Order No. PSA 25 of 2024 dated

01.06.2024 issued by respondent No. 2, by virtue of which the

detenue has been detained under preventive detention in terms of the

provisions of Section 8(1) (a) of J&K Public Safety Act, 1978.

FACTUAL MATRIX

02. It is stated that FIR No. 59/2013 under Section 363/342 RPC came to

registered at Police Station Bishnah on a written report lodged by one

Kala Ram S/o Dheru Ram R/o W.No.13, Bishnah regarding missing

of his daughter. In the complaint it was alleged that one Rinku Kumar

S/o Bhushan Lal R/o Langotian, Miran Sahib had persuaded

complainant‟s daughter for marriage and kidnapped her on the pretext

of marriage and took her to some unknown place. On completion of

investigation, Challan was produced before the Court of law against

the petitioner; FIR No. 44/2024 came to be registered at Police

Station Miran Sahib, Jammu for commission of offences under

Sections 307/336/34 IPC and 3/25/27 of Arms Act on the basis of

information received through reliable sources that notorious criminal

namely, Karnjit Singh @ Gigga alongwith Ishmit Singh @ Krish in

league with others had opened indiscriminate firing outside Khajuria

Food Mall,, Miran Sahib in order to kill owner of the Mall in lieu of

extortion (ferroti). During investigation, involvement of the petitioner

was found and accordingly, he was arrested and the case is still under

investigation; FIR No.74/2024 under Section 452/307/34 IPC and

3/25/27 of Arms Act was registered at Police Station, R.S.Pura on a

written report by one Yash Paul that two persons namely Gokal, Goga

alongwith one unknown came on a motorcycle after stopping their

motorcycle outside his house Goga fired two rounds out of which one

hit the box of pigeon. On hearing the sound, complainant‟s wife

reached near main gate, they caught hold her from neck and dragged

her. On hue and cry by the complainant and his wife, accused fled

away from the spot. During investigation, involvement of the

petitioner was found and the FIR is still under investigation. In the

grounds of detention it is stated, that the petitioner is a

dreaded/notorious criminal and is addicted to crime. His activities are

grave threat to the security of the State. The Detaining Authority after

drawing subjective satisfaction came to the conclusion that the

petitioner is a threat to the society and public order and order his

detention for the purpose of preventing and combating his activities

prejudicial to the security of the State, maintenance of public safety

and afford protection to the society.

03. It is stated that the detention of the detenue under preventive

detention is illegal, arbitrary and without any lawful jurisdiction as the

substantive law of the land could have sufficiently taken care of the

alleged activities of the detenue. The detenue, as such, has challenged

the impugned order inter alias on the grounds:-

a) That the impugned order of detention has been issued in an unreasonable, arbitrary and malafide manner.

b) That the order impugned has been issued in a casual and mechanical manner without proper application of mind to the peculiar facts and circumstances of the present case.

c) That the grounds of impugned detention order is verbatim copy of the dossier and no other material has been considered by the detaining authority which speaks volumes about the non-

application of mind on the part of the detaining authority which does not justify the preventive detention and the detention order requires quashment.

d) The order impugned is bad in law, because before directing preventive detention of the petitioner, the Detaining Authority did not call for the present status of the FIRs, which have been formed basis for detaining the petition under preventive custody.

e) A bare perusal of the order impugned and grounds of detention

transpires unawareness of the Detaining Authority as to whether petitioner was in custody or released on bail which makes the order impugned bad in law and liable to be quashed.

f) That Grounds of Detention indicates that the preventive detention of the petitioner is felt necessary for preventing and combating activities of the petitioner, which are prejudicial to the security of the State, maintenance of public safety and afford protection to the society. The expression „law and order‟, „public order‟ and „security of state‟ makes lot of difference and these expressions have different meanings and connotation and a person can be detained under J&K Public Safety Act, 1978 either for maintenance of public order or for security of State and not for both. On this count also, the impugned order of detention is bad in law.

g) That no satisfaction has been recorded by the detaining authority in the grounds of detention while passing the order of detention.

h) That all the safeguards available to the detenue in terms of the Constitution of India have been observed in breach by the respondents while detaining him in terms of impugned order.

i) The grounds of detention, detention order and dossier were not provided to the petitioner within the stipulated period and same were neither read over nor explained to the petitioner in the language which he understands

04. Per contra, the respondents in their counter affidavit have stated that

the detnue is a habitual offender and is involved in many criminal

offences and is repeatedly blatantly violating the rule of law including

Arms Act. The petitioner has no respect for the law of the land and his

activities are highly prejudicial to the maintenance of public order.

The petitioner has created terror and fear among the locals and his

criminal activities disturb even tempo of life of community. It is

stated that the petitioner is continuously indulging in criminal

activities and has become a chronic criminal and three FIRs stand

registered against him details of which have been given in the grounds

of detention. It is stated that the "maintenance of public order" always

occurs in juxtaposition with public safety. Repeated offences

committed by the detenue, who inflict major harm and injury on

public, is not only prejudicial to the public safety and public order but

also has the potential to impact overall security of the state. It is stated

that the dossier in respect of detenue dated 31.05.2024 was submitted

to the detaining authority and after carefully examining the dossier

and the relevant records attached with it, it was found imperative to

detain the detenue under the relevant provisions of Public Safety Act

as his criminal activities were posing serious threat to the maintenance

of public order. It is further stated that the ordinary law has failed to

deter the detenue, as is evident from his conduct as would emerge

from the contents of the dossier submitted by SSP Jammu.

05. It is further stated that at the time of execution of detention order, the

executing officer has provided the relevant documents along with

detention order, notice of detention, grounds of detention, dossier of

detention, copies of FIRs and statements of witnesses (total 35 leaves)

and had explained the same to the detenue in the language i.e

Hindi/Dogri, which he understands, informing him about his right to

make representation before the Government (Home Department) as

well as before the Detaining Authority against the detention order.

Respondents have also placed on record the execution report, and

confirmation of detention order by Home Department after seeking

opinion of the Advisory Board.

06. Heard learned counsel for the parties.

07. Learned counsel for the detenue states that the impugned detention

order suffers from non-application of mind as the grounds of

detention are mere reproduction of the dossier. It is submitted that at

the time of passing of the detention order the petitioner was already in

custody in connection with FIR No.44/2024 registered at Police

Station, Miran Sahib, whereas the grounds of detention indicates total

unawareness of the detaining authority regarding petitioner‟s custody,

which vitiates the detention order.

08. According to the learned counsel, the impugned order of detention is

also liable to be quashed on the ground that the grounds of detention

have been read over and explained to the detenue in a language he is

not conversant with and that the whole material relied upon by the

detaining authority has not been supplied to the detenue.

09. Learned counsel for the petitioner has relied upon judgments of the

Supreme Court in Bhupal Chndra Ghose v. Mr. Arif Ali and

others, (1974) 1 SCC 253, Sarabjeet Singh Mokha v. District

Magistrate Jabalpur and others, (2021) 20 SCC 98, G.M.Shah v.

State of Jammu & Kashir, (1980) 1 SCC 132, Dharmendra

Suganchand Chelawat v. Union of India and others, (1990) 1 SCC

746, M. Ahamedkutty v. Union of India and another, (1990) 2

SCC 1 and judgments of this Court in Faizan Rafiq Hakeem v.

State of J&K and others, 2011 (3) JKJ[HC] 238, Gh. Hassan

Kanroo v. State of J& K and another, JKJ Online 19297, Ghulam

Rasool v UT of J&K and others, 2024 SCC Online J&K 828.

10. Mr. Rajesh Thappa, learned AAG on the other hand submits that the

detenue is a hardcore/habitual criminal and has been involved in

various criminal offences by blatantly violating the rule of law

indulging in criminal activities 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 and had

he been let free, there would have been every likelihood of his re-

indulging in criminal activities. He further submits that the procedural

safeguards prescribed under the provisions of Public Safety Act and

the rights guaranteed to the detenue under the Constitution have

strictly been followed in the instant case. The detenue has been

furnished all the material, as was required, and was also made aware

of his right to make representation to the detaining authority as well as

to the government, against his detention.

11. Considered the submissions made and perused the material made

available.

12. Perusal of the detention record produced by the counsel representing

the respondents indicates that the Senior Superintendent of Police,

Jammu submitted dossier in respect of the detenue to the Detaining

Authority on 31.05.2024 with a request to detain the detenue under

the provisions of J&K Public Safety Act and the detaining authority

by virtue of the order impugned issued on 01.06.2024 itself has

ordered detention of the detenue under preventive detention. The

detention order came to be executed on 03.06.2024. The Execution

Report reveals that the notice of detention was given to the detenue

and contents of the detention warrant and grounds of detention have

been read over and explained to the detenue/detenue in Hindi/Dogri

language, which he understood fully. The relevant material consisting

of detention order (01 leaf), notice of detention (01 leaf), ground of

detention (05 leaves), dossier of detention (06 leaves), copies of FIR,

statement of witnesses and other related relevant documents (22

leaves) total 35 leaves have been supplied to the detenue, which has

been acknowledged by him by affixing his signatures on the execution

receipt. The detenue was also informed by the executing officer that

he can make representation to the Government as well as Detaining

Authority against his detention, if he so desires. The petitioner filed a

representation to the Government of UT of J&K on 26.09.2024,

which stands rejected vide communication dated 27.12.2024, a copy

whereof was also endorsed to Superintendent Central Jail, Jammu for

informing the detenue about rejection of his representation.

13. In the instant case, the detenue has been ordered to be detained in

preventive detention under the provisions of Jammu & Kashmir

Public Safety Act in order to prevent him from acting in any manner

prejudicial to the security of State, maintenance of public safety and

afford protection to the society.

14. Section 8 of the Public Safety Act provides that detenue can be

arrested for acting in any manner prejudicial to the security of the

State or maintenance of public order. That denotes that he can be

detain on one of the grounds and he cannot be detained for both the

grounds and if it is disclosed that the deteue has been detained on both

the grounds then the detention order becomes invalid. Hon‟ble

Supreme Court in the case of G.M. Shah (supra) while relying on Dr.

Ram Maohar Lohia v. State of Bihar, AIR 1966 SC 740 held thus:-

"As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar - Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. 'Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors, AIR 1974 SC 258."

15 In view of the ratio laid down by the Supreme Court in G.M.Shah

(supra), contention of the petitioner that the order impugned suffers from

non-application of mind as the detaining authority was not certain

whether the activities of the petitioner are prejudicial to the security of

State or maintenance of public order and has mentioned both in the

grounds of detention finds substance.

16 The petitioner in his petition has specially stated that he was in custody

when the order of detention was passed in connection with FIR

No.44/2024, which fact has not been disputed by the respondents in their

counter affidavit. In the grounds of detention which form basis for

detaining the petitioner under preventive detention, detaining authority

has shown total ignorance about the present status of the petitioner,

whether he was on bail or in custody and if he was already in custody

what were those compelling circumstances under which preventive

detention was ordered. If a detaining authority is unaware of the current

custody status of a detenue, it is generally considered a clear indication

of "non-application of mind," meaning thereby that they did not

carefully consider all relevant facts before making a detention decision,

potentially rendering the detention order invalid. Hon‟ble Supreme

Court in the case of Dharmendra Suganchand Chelawat v. Union of

India and others, (1990) 1 SCC 746, in para 21 of the judgment

concluded as under:-

"21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (i) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent materi- al before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be re- leased from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

17 From a perusal of the material available on the file, the ground regarding

non-application of mind on the part of the detaining authority appears to

be forceful, as the grounds of detention do not bear any reference to the

fact that the detenue has already been admitted to bail in the aforesaid

FIRs, on the basis of which, he has been taken into preventive custody.

The non-mentioning of this important fact in the grounds of detention

exhibits non-application of mind on the part of the detaining authority.

This shows that the detaining authority has not meticulously examined

the record which passing the impugned order of detention which renders

the same unsustainable in law.

18 Insofar as plea of the detenue that he has been deprived of his right to

make effective representation is concerned, it is evident from the

execution report that the entire material relied upon by the detaining

authority was supplied to the detenue, which he has acknowledged by

affixing his signature on the receipt. The detenue was also informed of

his right to make representation against the detention order before the

detaining authority as well as the Government. The record reveals that

the representation made by the petitioner has been rejected by the

respondents.

19 From the discussion made above, it becomes manifest that the impugned

order of detention suffers from total non-application of mind because the

detaining authority was not sure whether the activities of the petitioner

were prejudicial to the security of the State or maintenance of public

order and has ordered detention of the petitioner on both the grounds,

which is legally invalid. Further, the unawareness of the detaining

authority about custody of the petitioner while directing preventive

detention makes the impugned order bad in law.

20 In the premises, this petition deserves to be allowed. Accordingly, the

instant petition is allowed and the impugned order of detention is

quashed. The petitioner is directed to be released forthwith provided he

is not involved in any other case.

The record be returned to the learned counsel for the respondents.

(MOKSHA KHAJURIA KAZMI) JUDGE JAMMU 13.02.2025 Vinod.

Whether the order is speaking: Yes Whether the order is reportable: No