Jammu & Kashmir High Court

Unknown vs (I) Ut Of J&K Through on 9 May, 2025

Author: Sindhu Sharma

Bench: Sindhu Sharma

  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                  AT JAMMU

                                                               HCP No. 83/2024

                                                    Reserved on:  20.12.2024
                                                   Pronounced on: 09.05.2025


(i) Pritam Singh, Age 34,                             .... Petitioner/Appellant(s)
S/o Mohan Singh,
R/o Village Jerda, Tehsil Ramgarh,
District Samba.

                          Through:-            Mr. Jagpaul Singh, Advocate.

                    V/s

(i) UT of J&K through                                          .....Respondent(s)
Financial Commissioner-cum- Secretary
to the Government, Home Department,
Civil Secretariat, Jammu
(ii) The District Magistrate, Samba
(iii) Sr. Superintendent of Police, Samba
(iv) S.H.O., Police Station, Vijaypur, Samba
(v) S.H.O., Police Station, Ramgarh, Samba

                          Through:-            Mr. Rajesh Thappa, AAG.
CORAM: HON‟BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
                  JUDGMENT

01. The petitioner has questioned the legality, validity, and propriety of

impugned Detention Order No. 03/PSA of 2023, dated 13.05.2023, passed by

the District Magistrate, Samba, in exercise of powers under Section 8(1)(a) of

the J&K Public Safety Act, 1978, at the pre-execution stage.

02. The Sr. Superintendent of Police, Samba, submitted a dossier to the

District Magistrate, Samba, regarding the involvement of the petitioner in as

many as nine FIRs. The details of the FIRs are; (i) FIR No. 40/2016 dated

29.08.2016, registered under Sections 341, 323, and 34 RPC at Police Station

Ramgarh; (ii) FIR No. 29/2018 dated 16.05.2018, under Sections 341, 323,

and 34 RPC at the same Police Station; (iii) FIR No. 82/2019 dated

14.12.2019, under Sections 323, 427, 452, and 201 IPC read with Section 4/25

of the Arms Act, also at Police Station Ramgarh; (iv) FIR No. 188/2019 dated

17.10.2019 under Sections 307, 452, 147, 148, 382, and 323 RPC registered at

Police Station Rajbagh; (v) FIR No. 13/2019 dated 26.01.2019 under Sections

382, 323, and 147 RPC at Police Station Vijaypur; and (vi) FIR No. 78/2020

dated 20.07.2020 under Sections 307, 341, and 323 IPC at Police Station

Ramgarh, thus, the detention of the petitioner was sought as his activities were

considered prejudicial to the maintenance of public order.

03. The District Magistrate Samba, after considering the relevant material,

passed the detention order against the petitioner on the basis that the petitioner

is a habitual and notorious criminal involved in a series of criminal activities

that pose a serious threat to public order and tranquility. It is stated that the

petitioner has created an atmosphere of fear and insecurity among the law-

abiding citizens by forming a criminal gang and actively encouraging others,

particularly youth, to join him in unlawful activities. His actions are said to be

aimed at disrupting the peace and becoming the leader of a criminal syndicate

operating in the area. The notoriety of the petitioner has reached such alarming

levels that even witnesses of his activities are unwilling to depose against him

due to fear and intimidation. The District Magistrate has observed that the

conduct of the petitioner is prejudicial to the maintenance of public order, and

that his continued liberty would endanger the safety, security, and peaceful

living of the general public.

04. The petitioner has challenged the order of detention on the grounds that;

(i) the detaining authority cannot detain the petitioner either on the grounds on

which he was earlier detained or by clubbing the earlier grounds with new

ones as per Section 19 of the J&K Public Safety Act, 1978; (ii) the right to

personal liberty of an individual is transcendental, sacrosanct, and inviolable,

therefore, it is placed on the highest pedestal and cannot be interfered with in a

casual and mechanical manner by resorting to such a draconian legislation as

no person can be deprived of this right unreasonably and arbitrarily; (iii) the

order of detention issued under preventive detention laws can be challenged at

both the pre-execution as well as post-execution stages and this Court has the

power to quash such an order even at the pre-execution stage; (iv) the

grounds of detention lack a live and proximate link to the object of

maintaining public order.

05. The respondents have filed their counter affidavit and produced the record.

06. In the counter affidavit filed by the respondents, it is submitted that due

to the continuous and repeated involvement of the petitioner in criminal

activities, which were prejudicial to the maintenance of public order, there

was strong apprehension that he may again indulge in such activities. It is

further submitted that the petitioner is a habitual offender and has formed a

gang, thereby attempting to lure others into criminal conduct, therefore, in

order to prevent the petitioner from expanding his criminal activities and

disturbing public order, the detention was deemed necessary.

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

08. The power of the High Courts to set aside a preventive detention order

at the pre-execution stage was first considered by the Hon'ble Apex Court

in Alka Subhash Gadia (supra). In the said case, the Hon'ble Supreme

Court held that the scope for judicial interference at the pre-execution

stage is extremely limited and can be exercised only in rare and

exceptional circumstances. The Court observed that such interference is

permissible only when the courts are prima facie satisfied that: (i) that the

order is not passed under the Act under which it is purported to have been

passed, (ii) that it is sought to be executed against a wrong person,

(iii) that it is passed for a wrong purpose, (iv) that it is passed on vague,

extraneous and irrelevant grounds or (v) that the authority which passed it

had no authority to do so.

09. In „Deepak Bajaj vs. State of Maharashtra and another‟, (2008)

16 SCC 14, the Hon'ble Apex Court held that:

"...In Alka Subhash Gadia case, 1992 Supp (1) SCC 496, the Supreme Court only wanted to lay down the principle that entertaining a petition against a preventive detention order at a pre-execution stage should be an exception and not the general rule. The proposition is entirely agreed to. However, if a person against whom a preventive detention order has been passed comes to Court at the pre-execution stage and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). To tell such a person that although such a detention order is illegal, he must yet go to jail though he will be released later, is a meaningless and futile exercise. If a person is sent to jail, then even if he is subsequently released, his reputation may be irreparably tarnished."

(Paras 8, 15, 9 and 12)

10. The Hon'ble Supreme Court further expanded the scope of judicial

review in such matters by holding that where a detention order is patently

illegal, courts are not precluded from quashing it merely because it is

challenged at the pre-execution stage. The relevant portion of the

judgment reads as under:

"18. It must be remembered that every person has a fundamental right of liberty vide Article 21 of the Constitution. Article 21, which gives the right of life and liberty, is the most fundamental of all the Fundamental Rights in the Constitution. Though, no doubt, restrictions can be placed on these

rights in the interest of public order, security of the State, etc. but they are not to be lightly transgressed."

10. It is also submitted that this is the third time the petitioner is being

subjected to preventive detention and both the prior detention orders were

quashed by this Court. The petitioner has also placed on record the judgments

passed in WP(Crl) No. 34/2020 and WP(Crl) No. 26/2021. A perusal of the

present grounds of detention reveal that they are mere repetitions of the earlier

grounds without citation of any fresh facts.

11. The first ground raised by the petitioner is that he was earlier booked

under the Public Safety Act by virtue of Detention Order No. 4/PSA of 2020,

dated 10.08.2020, which was challenged by way of WP(Crl) No. 34/2020.

The writ petition was allowed and the detention order was quashed vide

judgment dated 26.11.2020. Thereafter, the petitioner was again detained

pursuant to Detention Order No. 01/PSA of 2021, dated 06.05.2021 by

clubbing the earlier grounds of detention with a new one, namely FIR No.

91/2021 under Sections 307/120-B IPC, 3/25 Arms Act, Police Station

Gandhi Nagar, Jammu. This subsequent detention order was also challenged

by the petitioner by way of WP(Crl) No. 26/2021, which was again allowed

by quashing the detention order vide judgment dated 09.11.2021.

12. The Hon'ble Apex Court in "Chhagan Bagwan Kahar vs. N. L.

Kalna and others", 1989 AIR 1234, has held as under:

"It emerges from the above authoritative judicial pronouncements that even if the order of detention come 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. In the present case, no doubt, the order of detention contains fresh facts. In addition to that the detaining authority has referred to the earlier detention order and the judgement of the High Court quashing it, presumably for the purpose of showing that the petitioner in spite of earlier detention order was continuing his bootlegging activities."

13. Similarly, in "Jahangir Khan Fazal Khan Pathan vs. The Police

Commissioner, Ahmedabad and another", AIR 1989 SC 1812, the

Hon'ble Supreme Court held as under:

"....It is, therefore, clear that an order of detention cannot be made after considering the previous grounds of detention when the same had been quashed by the Court, and if such previous grounds of detention are taken into consideration while forming the subjective satisfaction by the detaining authority in making a detention order, the order of detention will be vitiated. It is of no consequence if the further fresh facts disclosed in the grounds of the impugned detention order have been considered."

Therefore, the detention on these grounds is unattainable.

14. It was next submitted that there is no live link between the aforesaid

five FIRs and the grounds of detention. A perusal of the said FIRs reveals

that they pertain to private disputes between the petitioner and other

individuals, and there is nothing on record to indicate that the petitioner

has indulged in any such activities after the year 2022. In the present case,

the detention of the petitioner is based on FIRs from 2016, 2018, 2019,

and 2020. No incident has been cited after the year 2020, therefore, the

alleged activities are too remote in time and cannot be a valid basis for

preventive detention. The live and proximate link, a necessary pre-

condition, is conspicuously absent.

15. There is merit in the submission of the learned counsel for the petitioner

that there is no live link between the last activity and the impugned detention

order. The detaining authority has relied upon the aforesaid FIRs while

passing the impugned order, without considering that the petitioner was

admittedly on bail, and no further activities have been alleged against the

petitioner. Therefore, the impugned detention order is liable to be quashed.

16. The determination of whether the prejudicial activities of an individual,

necessitating the issuance of a detention order, are sufficiently proximate to

the time the order is made, or whether the live link between the activities and

the purpose of detention has been severed, depends on the specific facts and

circumstances of each case. However, when there is an undue and prolonged

delay between the prejudicial activities and the passing of the detention

order, the court must examine whether the detaining authority has provided a

satisfactory and reasonable explanation for such delay. The court must also

assess whether the causal link has been broken in the context of the

particular circumstances of the case.

17. In the present case, there is no cogent explanation coming forth from

perusal of the grounds of detention with reference to the live-link between

the prejudicial activities and the purpose of the detention and resultantly the

impugned detention order is liable to be quashed. In this regard reference is

made to the law laid down by the Hon'ble Apex Court in 'T. A. Abdul

Rahman v. State of Kerala‟ (1989) 4 SCC 741, and „Rajinder Arora v.

Union of India and others‟, (2006) 4 SCC 796. Para 24 of the judgment

passed in „Sama Aruna v. State of Telangana and another‟, AIR 2017 SC

"24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No.221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-2003. The petitioner could not have been detained preventively by taking this stale incident into account, more so when he was in jail."

18. In light of the foregoing discussion, it is evident that the impugned

detention order suffers from multiple legal infirmities. The grounds of

detention are substantially repetitive of those that formed the basis of earlier

detention orders which have already been quashed by this Court. No fresh or

proximate material has been brought on record to justify the preventive

detention. Preventive detention, being an exceptional measure, must be

exercised with utmost care, and only in compelling circumstances. In the

present case, no such compelling or exceptional circumstances have been

demonstrated to justify the exercise of preventive detention.

19. In view of the aforesaid reasons, there is no need to advert to other

grounds raised in this petition. This petition is allowed and the Detention

Order No. 03/PSA of 2023, dated 13.05.2023, passed by the District