Jammu & Kashmir High Court
Mukesh Kumar vs Ut Of Jammu And Kashmir on 26 November, 2024
1
S. No. 13
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on: 26.11.2024
Case No. :- HCP No. 83/2023
CM No. 7254/2023
Mukesh Kumar, Age 34 years,
S/o Dilawar Kumar,
R/o Ward No.1, Akhnoor,
District, Jammu. ..... Petitioner(s)
Through: Mr. A.P.Singh, Advocate.
Vs
1. UT of Jammu and Kashmir
through Commissioner Secretary,
Department of Home,
Civil Secretariat,
Srinagar/Jammu.
2. Divisional Commissioner,
Jammu.
3. Deputy Commissioner, Jammu.
4. Senior Superintendent of Police,
Jammu. ..... Respondent(s)
Through: Mr. Rajesh Thappa, AAG.
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
JUDGMENT
1. Impugned in the instant petition, filed under the provisions of Article 226
of the Constitution of India by the petitioner is the order of Detention
bearing No. 19 PSA of 2023 dated 01.10.2023 passed by the respondent
No.3 (hereinafter referred to as the ―detaining authority‖, for short), while
invoking his powers under Section 8(1) (a) of the Jammu and Kashmir
Public Safety Act, 1978 (hereinafter referred to as the ―Act‖, for short),
2 HCP No. 83/2023
whereby the petitioner has been ordered to be detained with a view to
prevent him from acting in any manner prejudicial to the maintenance of
public order and lodged in Central Jail, Kot Bhalwal, Jammu.
2. The instant petition is being filed at the pre-execution stage of the
impugned order and the petitioner has inter alia sought for the issuance of
a writ of certiorari for quashment of the impugned detention order No. 19
PSA of 2023 dated 01.10.2023.
3. The petitioner has assailed the impugned detention order on the grounds
inter alia that he is the citizen of India and, as such, is within his rights to
approach this Court for enforcement of his fundamental rights as
enshrined in the Constitution of India; that he had already filed a petition
bearing HCP No. 76/2023 before this Court with the prayer for issuance
of a direction against the respondents for furnishing him the copy of the
impugned detention order, which came to be subsequently withdrawn by
him on 17.11.2023 with liberty to assail the impugned order; that he is an
educated person serving in the Forest Department and was falsely
implicated in certain cases but got subsequently acquitted in almost all the
cases except two challans which are still pending disposal before the
learned trial court; that he through his father approached the detaining
authority with a representation which was not considered; that the order
impugned has been passed in a mechanical manner without application of
mind as the criminal cases in which he has already been acquitted have
been made the basis for his detention; that there is no proximity of time
3 HCP No. 83/2023
between the last FIR and the grounds of detention and that impugned
order has the effect of violating the fundamental rights of the petitioner.
4. The respondents through the counter affidavit filed by the detaining
authority have resisted the instant petition on the grounds that petitioner
has no cause of action to file the petition for non-execution of the
impugned order and the case does not fall under the exception carved out
by the Hon’ble Apex Court in case titled ―Additional Secretary to
Government of India Vs. Smt. Alka Subash Gadia‖, (1992 SCC (Cri)
301). That none of the fundamental, constitutional, statutory or any legal
rights of the petitioner stands violated/infringed by the respondents which
may have given the cause of action to file the petition. That the subjective
satisfaction drawn by the detaining authority before the detention of the
petitioner under the Act cannot be questioned on the ground of
insufficiency of the incriminating material against the petitioner. That the
petitioner became undiscoverable and escaped the execution of the
impugned detention order, which was passed by the detaining authority
after deriving the subjective satisfaction from the material placed before
him by the sponsoring authority. That petitioner has suppressed more and
revealed less because since 2009 till 2023, he was found involved in
seven different cases of varying intensity including offences of attempt to
murder, illegal use of arms, theft, trespassing, intimidation etc. which
have the effect of disturbing the public order and that he is a habitual
criminal involved in multiple cases which have the cumulative effect of
disturbing the public order.
4 HCP No. 83/2023
5. I have heard learned counsel for the parties.
6. Learned counsel for the petitioner, Mr. A.P.Singh, Advocate while
reiterating the stand already taken in the petition contended that the
impugned detention order is the outcome of illegality and incorrectness
for being devoid of non-application of mind and subjective satisfaction on
the part of the detaining authority. He contended that the petitioner is
alleged to be involved in a series of criminal cases but the fact is that he
has already been acquitted in most of the cases and only two cases against
him are pending trial in which also he is deemed to be innocent until
proved guilty. The learned counsel very vehemently contended that the
detaining authority has misused his power vested in him under the Act by
ordering the preventing detention of the petitioner on the allegation of his
criminal activities which may amount to infraction of general law and
order and not the disorder in the Society. He contended that none of the
allegations/involvements amount to breach of public order as defined
under Section 8 (3) of the Act. He submitted that it is well settled by the
Hon’ble Supreme Court in a catena of judgments that there lies a marked
distinction between the acts amounting to breach of law and order and the
acts prejudicial to the social order.
7. He contended that detaining authority has not mentioned in the impugned
order as to how the normal criminal law is inadequate to deal with the
alleged acts of the petitioner. He further contended that the petitioner is a
government servant, who is subject to the service laws and, as such, it is
unbelievable that a government servant can be a repeated offender. The
5 HCP No. 83/2023
learned counsel in support of his arguments placed reliance on the
authoritative judgments of the Hon’ble Apex Court cited as Ameena
Begum Vs. The State of Telagana & Ors., Criminal Appeal arising
out of SLP No. 8510 of 2023 decided on 04.09.2023, “Sk. Serajul Vs.
State of W.B”, 1975 CriLJ 1328 decided on 09.09.1974, “Deepak Bajaj
Vs. State of Maharashtra and another”, (2008) 16 SCC 14 and the
judgments of this Court titled “Jaffar Ahmad Parray Vs. UT of J&K
and another”, WP (Crl) No. 209/2023 decided on 22.03.2024, “Abdul
Majeed Dar Vs. UT of J&K and another”, LPA No. 19/2023 in [WP
(Crl) No. 514/2022] decided on 09.06.2023, “Harvinder Pal Singh alias
Rambo Vs. UT of J&K and others”, LPA No. 33/2020, decided on
14.12.2022, ―Mohd. Yousuf & anr. Vs. UT of J&K & Ors.”, 2023 (4)
JKH [HC] 370 and “Roshan Lal Vs. UT of J&K and Ors.”, decided on
07.03.2024.
8. The learned counsel for the petitioner on the support of the afore-referred
cases also contended that a pre-execution petition for quashment of the
detention order shall lie under the circumstances where the court is
satisfied that the impugned detention order suffers from non-application
of mind.
9. Per contra, the learned State counsel submitted that the petition is liable to
be dismissed as being not maintainable because no exceptional case has
been carved out for filing the pre-execution petition. He submitted that
such petitions shall have an adverse affect on the criminal justice system
because the pre-execution quashment of detention orders shall encourage
6 HCP No. 83/2023
the habitual offenders to continue with their illegal activities disturbing
the social order. Learned counsel submitted that the Hon’ble Apex Court
in case titled “Additional Secretary to Government of India Vs. Smt.
Alka Subash Gadia (1992 SCC (cri) 301)” has held that an exceptional
circumstance shall be made out for interfering with a detention order at
pre-execution stage.
The learned State counsel submitted that the petitioner is involved
in a series of criminal acts that have led to the registration of case FIR No.
95/2009 under Sections 307/147/148 RPC of Police Station, Kanachak,
FIR No. 71/2012 under Sections 279/337 RPC of Police Station,
Akhnoor, FIR No. 48/2015 under Sections 341/323 RPC of Police
Station, Kanachak, FIR No. 87/2015 under Sections 307/341/147/148/323
RPC of Police Station, Akhnoor, FIR No. 88/2015 under Sections
307/341/147/148/323 RPC & 4/25 Arms Act of Police Station, Akhnoor,
FIR No. 41/2018 under Sections 341/323/382/147 RPC & 3/25 Arms Act
of Police Station, Akhnoor, FIR No. 173/2021 under Sections
452/504/506 IPC & 3/25 & 4/25 Arms Act of Police Station, Akhnoor. He
also contended that DDR No. 09 dated 11-08-2023 came to be maintained
in the Police Station Akhnoor pursuant to the information regarding the
petitioner’s continuous involvement in criminal activities as a drug
peddler and property dealer. The learned State counsel prayed for the
dismissal of the petition as being premature and not maintainable.
10. I have perused the instant petition, the reply affidavit and have also gone
through the detention record produced by the learned State counsel.
7 HCP No. 83/2023
11. Keeping in view the aforementioned perusal and the consideration of the
rival arguments advanced on both the sides in light of the law on the
subject, this Court is of the opinion, that a ground is made out for
interfering with the impugned detention order even at this pre-execution
stage as the same is lacking the application of mind on the part of the
detaining authority.
12. The main issues for addressal in the instant case are (1) Whether the
allegations against the petitioner culminating into registration of case
FIRs have tendency to be prejudicial to the social order and if the answer
is in negative whether the impugned detention order suffers from non-
application of mind and (2) Whether a writ petition seeking quashment of
the detention order is maintainable at the pre-execution stage.
13. Taking the first issue for determination, the Court in the facts and
circumstances of the case is of the opinion that although the criminal
acts of the petitioner which have culminated into the registration of
FIR(s) and the consequent final reports/Challan in terms of Section
173 of the Code corresponding to Section 193 of BNSS, no doubt
amount to infraction of law and order by falling within the definitions
of the relevant offences under IPC/BNS yet the same have not the
implication of disturbing the “social order”. The police concerned has
already filed the final reports/Challans in all the cases before the
competent trial courts and it is also reported that most of the cases
stand disposed of with the acquittal of the petitioner. The learned
detaining authority has not mentioned in the grounds of detention as
8 HCP No. 83/2023
to why the normal criminal law is inadequate to deal with the
petitioner. Further the petitioner being a government servant is
subject to the service laws of the government and it is very difficult
for a government servant to retain his employment if he is a habitual
offender of heinous crimes.
14. It is apt to reproduce the provisions of Section 8 (3) of the Act which
defines the social order for the purposes of Section 8 (1) (a) (i) of the Act.
―8. Detention of certain persons
(3) For the purposes of sub-section (1
[(a) omitted.
(b) ―acting in any manner prejudicial to the maintenance of
public order‖ means –
(i) promoting, propagating or attempting to create, feelings
of enmity or hatred or disharmony on ground of religion,
race, caste, community, or region;
(ii) making preparations for using, or attempting to use, or
using, or instigating, inciting, provoking or otherwise,
abetting the use of force where such preparation, using,
attempting, instigating, inciting, provoking or abetting,
disturbs or is likely to disturb public order;
(iii) attempting to commit, or committing, or instigating,
inciting, provoking or otherwise abetting the commission of,
mischief within the meaning of section 425 of the Ranbir
Penal Code where the commission of such mischief
disturbs, or is likely to disturb public order;
(iv) attempting to commit, or committing, or instigating,
inciting, provoking or otherwise abetting the commission of
an offence punishable with death or imprisonment for life or
imprisonment of a term extending to seven years or more,
where the commission of such offence disturbs, or is likely
to disturb public order;
[(c) ―smuggling‖ in relation to timber or liquor means
possessing or carrying of illicit timber or liquor and includes
any act which will render the timber or liquor liable to
confiscation under the Jammu and Kashmir Forest Act,
Samvat, 1987 or under the Jammu and Kashmir Excise Act,
1958, as the case may be;]
[(d) ―timber‖ means timber of Fir, Kail, Chir or Deodar tree
whether in logs or cut up in pieces but does not include
firewood;]
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[(e) ―Liquor‖ includes all alcoholic beverages including
beer]‖.
15. The Hon’ble Apex Court has in a catena of judgments noted the
difference between, “law and order” and “public order”.
16. In Ram Manohar Lohia Vs. State of Bihar (1966) 1 SCR 709, it was
held by the Hon’ble Apex Court through Hon’ble M. Hidayatullah. J. (as
the Chief Justice then was) at para 54 as under:-
―54. *** Public order if disturbed, must lead to public
disorder. Every breach of the peace does not lead to public
disorder. When two drunkards quarrel and fight there is
disorder but not public disorder. They can be dealt with
under the powers to maintain law and order but cannot be
detained on the ground that they were disturbing public
order. Suppose that the two fighters were of rival
communities and one of them tried to raise communal
passions. The problem is still one of law and order but it
raises the apprehension of public disorder. Other examples
can be imagined. The contravention of law always affects
order but before it can be said to affect public order, it must
affect the community or the public at large. A mere
disturbance of law and order leading to disorder is thus not
necessarily sufficient for action under the Defence of India
Act but disturbances which subvert the public order are.‖
17. In Arun Ghosh Vs. State of West Bengal (1970) 1 SCC 98 again
Hon’ble M. Hidayatullah, (CJ) observed that it is not the every case of a
general disturbance to public tranquility which can be termed as public
disorder and the test to be applied in such cases is whether the alleged act
leads to the disturbance of the current of life of the community so as to
amount to disturbance of the public order. That if the alleged act affects
some individual or individuals leaving tranquility of the society
undisturbed, the act cannot be termed as amounting to public disorder. In
that case the petitioner/detenu was detained by an order of a district
10 HCP No. 83/2023
magistrate since he had been indulging in teasing, harassing and
molesting young girls and assaults on individuals of a locality. While
holding that the conduct of the petitioner/detenu could be reprehensible, it
was further held that it (read: the offending act) ―does not add up to the
situation where it may be said that the community at large was being
disturbed or in other words there was a breach of public order or
likelihood of a breach of public order‖.
The observations made by the Hon’ble Apex Court in the said case
at para 3 are reproduced as under:-
―3.*** Public order was said to embrace more of the
community than law and order. Public order is the even
tempo of the life of the community taking the country as a
whole or even a specified locality. Disturbance of public
order is to be distinguished from acts directed against
individuals which do not disturb the society to the extent of
causing a general disturbance of public tranquility. It is the
degree of disturbance and its affect upon the life of the
community in a locality which determines whether the
disturbance amounts only to a breach of law and order. … It
is always a question of degree of the harm and its affect
upon the community….This question has to be faced in
every case on facts. There is no formula by which one case
can be distinguished from another.‖
18. In Kuso Sah Vs. The State of Bihar (1974) 1 SCC 195, the Hon’ble
Apex Court through Hon’ble Y.V. Chandrachud, J. (as the Chief Justice
then was) speaking for the Bench held at paras 4 & 6 as under:-
―4. *** The two concepts have well defined contours, it
being well established that stray and unorganized crimes of
theft and assault are not matters of public order since they
do not tend to affect the even flow of public life. Infractions
of law are bound in some measure to lead to disorder but
every infraction of law does not necessarily result in public
disorder. ***
11 HCP No. 83/2023
6. *** The power to detain a person without the safeguard
of a court trial is too drastic to permit a lenient construction
and therefore Courts must be astute to ensure that the
detaining authority does not transgress the limitations
subject to which alone the power can be exercised. ***‖
19. In Rekha Vs. State of Tamil Nadu, (2011) 5 SCC 244, the observations
made by the Hon’ble Apex Court at its paras 21, 29 & 30 deserve a
needful mention :-
―21. It is all very well to say that preventive detention is
preventive not punitive. The truth of the matter, though, is
that in substance a detention order of one year (or any other
period) is a punishment of one year’s imprisonment. What
difference is it to the detenu whether his imprisonment is
called preventive or punitive?
(italics in original)
***
29. Preventive detention is, by nature, repugnant to
democratic ideas and an anathema to the Rule of law. No
such law exists in the USA and in England (except
during war time). Since, however, Article 22(3)(b) of the
Constitution of India permits preventive detention, we
cannot hold it illegal but we must confine the power of
preventive detention within very narrow limits, otherwise
we will be taking away the great right to liberty guaranteed
by Article 21 of the Constitution of India which was won
after long, arduous and historic struggles. It follows,
therefore, that if the ordinary law of the land (the Penal
Code and other penal statutes) can deal with a situation,
recourse to a preventive detention law will be illegal.‖
―30. Whenever an order under a preventive detention law is
challenged one of the questions the court must ask in
deciding its legality is: was the ordinary law of the land
sufficient to deal with the situation? If the answer is in the
affirmative, the detention order will be illegal. In the present
case, the charge against the detenu was of selling expired
drugs after changing their labels. Surely the relevant
provisions in the Penal Code and the Drugs and Cosmetics
Act were sufficient to deal with this situation. Hence, in our
opinion, for this reason also the detention order in question
was illegal.‖
12 HCP No. 83/2023
20. In Vijay Narain Singh Vs. State of Bihar, (1984) 3 SCC 14, the
Hon’ble Apex Court has held at para 32 of the judgment through Hon’ble
E.S.Venkataramiah, J. (as the Chief Justice then was) as under:-
―32….It is well settled that the law of preventive detention is
a hard law and therefore it should be strictly construed. Care
should be taken that the liberty of a person is not
jeopardized unless his case falls squarely within the four
corners of the relevant law. The law of preventive detention
should not be used merely to clip the wings of an Accused
who is involved in a criminal prosecution. It is not intended
for the purpose of keeping a man under detention when
under ordinary criminal law it may not be possible to resist
the issue of orders of bail, unless the material available is
such as would satisfy the requirements of the legal
provisions authorizing such detention. When a person is
enlarged on bail by a competent criminal court, great
caution should be exercised in scrutinizing the validity of an
order of preventive detention which is based on the very
same charge which is to be tried by the criminal court.‖
21. In A.K.Roy Vs. Union of India, (1982) 1 SCC 271 it was held at para 70
of the judgment as under:-
70. *** We have the authority of the decisions in … for
saying that the fundamental rights conferred by the different
articles of Part III of the Constitution are not mutually
exclusive and that therefore, a law of preventive
detention which falls within Article 22 must also meet the
requirements of Articles 14, 19 and 21.‖
22. This Court is also fortified in its opinion with the recent authoritative
judgment of the Hon’ble Apex Court cited as Ameena Begum Vs. The
State of Telagana & Ors., Criminal Appeal arising out of SLP No.
8510 of 2023 decided on 04.09.2023 also referred to by the learned
counsel for the petitioner in which it has been held at para 40 of the
judgment as under:-
―40. On an overall consideration of the circumstances, it
does appear to us that the existing legal framework for
maintaining law and order is insufficient to address like
offences under consideration, which the Commissioner
13 HCP No. 83/2023anticipates could be repeated by the Detenu if not detained.
We are also constrained to observe that preventive detention
laws–an exceptional measure reserved for tackling
emergent situations–ought not to have been invoked in this
case as a tool for enforcement of ―law and order‖. Thus, for
the reason that, the Commissioner despite being aware of
the earlier judgment and order of the High Court dated 16th
August, 2021 passed the Detention Order ostensibly to
maintain ―public order‖ without once more appreciating the
difference between maintenance of ―law and order‖ and
maintenance of ―public order‖. The order of detention is,
thus, indefensible.‖
23. In the above referred case, the allegation against the detenu was that he
was ―habitually committing the offences including outraging the
modesty of women, cheating, extortion, obstructing the public
servants from discharging their legitimate duties, robbery and
criminal intimidation along with his associates in an organized
manner in the limits of … and he is a ‗Goonda’ as defined in clause (g)
of Section 2‖ of the relevant statute invoked by the Commissioner. The
Commissioner, with a view to prevent the Detenu from acting in a manner
prejudicial to maintenance of public order, recorded not only his
satisfaction for invoking the provisions of the Act but also recorded a
satisfaction that ―the ordinary law under which he was booked is not
sufficient to deal with the illegal activities of such an offender who has no
regard for the society. Hence, unless he is detained under the detention
laws, his unlawful activities cannot be curbed‖.
24. The Hon’ble Apex Court in the landmark judgment cited as Sushanta
Goswami, In Re ([1968} Supreme Court of India) addressed the critical
issue of preventive detention under Article 32 of the Indian Constitution.
The said case involved a collective petition by Sushanta Goswami and 46
14 HCP No. 83/2023
others challenging their detention under Section 3 (2) of the Prevention of
Detention Act, 1950. The central question revolved around was whether
the grounds for detention genuinely pertained to maintaining public order
or was merely related to general law and order? The Hon’ble Supreme
Court meticulously examined each petitioner’s grounds for detention,
categorizing them based on their relevance to ―public order.‖ The Court
invalidated detention orders where the activities alleged did not directly
threaten public order but were instead typical criminal offences such as
theft, assault and property damage. Conversely, detention was upheld
only where the activities posed a significant threat to the community’s
overall peace and satiability.
A pivotal aspect of the judgment was the Court’s insistence that
detention under the guise of preventing actions prejudicial to public order
must be substantiated by concrete evidence showing a direct impact on
societal harmony. The Court emphasized the necessity of a clear and
direct correlation between the detainee’s actions and the maintenance of
public order.
The Court referenced two significant cases to support its stance:
Dwarka Das Bhatia Vs. State of Jammu & Kashmir (1956 SCR
945): This case underscored the importance of relevance in grounds for
preventive detention, rejecting arbitrary detentions based on vague or
unrelated reasons.
Pushkar Mukherjee Vs. State of West Bengal: A more recent
decision at the time, this case further clarified the judiciary’s view on
15 HCP No. 83/2023
maintaining the balance between State security and individual liberties,
reinforcing stringent checks on detention orders.
The Court’s legal reasoning hinged on interpreting ―public order‖
with precision. It delineated between general disturbances of law and
order and actions that genuinely threaten societal piece. The judgment
clarified that not every act disrupting law and order qualifies as being
―prejudicial to public order.‖ For instance, petty thefts or assaults without
broader societal implications do not meet the threshold for preventive
detention under the Act.
Further more, the court critiqued the authorities’ tendency to
conflate individual criminal acts with threats to public order, thereby
undermining the very essence of preventive detention. By setting aside
detention orders lacking direct relevance, the court reinforced the
principle that such extreme measures must be reserved for genuine threats
to societal harmony.‖
25. So it is reiterated that the material brought before the learned detaining
authority by the District Superintendent of Police, Jammu was not of such
a nature which could have been understood and apprehended as
prejudicial to the ―public order‖. The alleged actions of the petitioner no
doubt amount to infraction of laws for which the legal mechanism in
place was already pressed into service. The invocation of the provisions
of the Act to detain the petitioner rather than to pursue the prosecution
against him appears to be an unjustified exercise tentamounting to
violation of the fundamental rights of the petitioner. Under these
16 HCP No. 83/2023
circumstances, the non-application of the mind is discernible in the
matter.
It is a settled legal position that a detention order suffering from
non-application of mind of the detaining authority cannot sustain under
law.
26. Now coming to the second issue as to whether a writ petition will lie to
challenge a detention order under the Act at the pre-execution stage?
27. This court is of the opinion that if a detention order suffers from patent
non-application of mind and is devoid of the subjective satisfaction of the
detaining authority, there is no bar for a writ court to quash the same even
at the pre-execution stage.
In its opinion, this Court is fortified with the authoritative law laid
down by the Hon’ble Apex Court in “Deepak Bajaj Vs. State of
Maharashtra and another”, (2008) 16 SCC 14 in which it has been
authoritatively held that although entertaining a petition against
preventive detention order at pre-execution stage should be an exception
and not a general rule yet if a person against whom the preventive
detention order is passed comes to court at pre-execution stage and
satisfies the court that such order is clearly illegal, there is no reason why
the court should shut its hands and compel him to go to Jail, even though
he is bound to be released subsequently because of illegality of such
order. It has been held in the case that if a person is sent to Jail, then even
if he is subsequently released, his reputation may be irreparably tarnished.
Liberty of a person is a precious fundamental right under Article 21 of the
17 HCP No. 83/2023
Constitution and should not be likely trespassed. It has been further held
in the said case that five grounds mentioned in Alka Subash Gadia’s case
1992 1 SCC 496 on which the Court can set aside detention order at pre-
execution stage, held illustrative and not exhaustive.
28. The contention of the learned State counsel to the effect that a writ of
Habeas Corpus shall not lie unless the petitioner is in detention as in the
instant case is not having any substance. This Court in terms of its powers
vested under Article 226 of the Constitution is fully competent to issue
writs in the appropriate and justified circumstances in the nature of
certiorari and mandamus for quashing a detention order found illegal and
for restraining the respondents from arresting the petitioner. Since the
petition relates to a detention matter, as such, the petition has been labeled
as a Habeas Corpus Petition. However, the petitioner has sought the
reliefs of quashment of the impugned detention order and the restraint
upon the respondents regarding his arrest. It is profitable to reproduce the
paras 19 to 22 of the above referred judgment in Deepak Bajaj’s case
(supra), as under:-
―19. Learned counsel for the respondent submitted that a
writ of habeas corpus lies only when there is illegal
detention, and in the present case since the petitioner has not
yet been arrested, no writ of habeas corpus can be issued.
We regret we cannot agree, and that for two reasons.
Firstly, Article 226 and Article 32 of the Constitution permit
the High Court and the Supreme Court to not only issue the
writs which were traditionally issued by British Courts but
these Articles give much wider powers to this Court and the
High Court. This is because Article 32 and Article 226 state
that the Supreme Court and High Court can issue writs in
the nature of habeas corpus, mandamus, certiorari, etc. and
they can also issue orders and directions apart from issuing
writs.
18 HCP No. 83/2023
20. The words ―in the nature of‖ imply that the powers of
this Court or the High Court are not subject to the traditional
restrictions as on the powers of the British Courts to issue
writs. Thus the powers of this Court and the High Court are
much wider than those of the British Courts vide Dwarka
Nath vs. Income-tax Officer, Special Circle, D Ward,
Kanpur & Anr. AIR 1966 SC 81 (vide AIR para 4), Anadi
Mukta Sadguru Shree Muktajee Vandas swami Suvarna
Jayanti Mahotsav Smarak Trust & Ors. vs. V.R. Rudani &
Ors. AIR 1989 SC 1607 (vide AIR paras 16 to 18), etc.
21. Secondly, what the petitioner really prays for is a writ in
the nature of certiorari to quash the impugned detention
order and/or a writ in the nature of mandamus for
restraining the respondents from arresting him. Hence even
if the petitioner is not in detention, a writ of certiorari and/or
mandamus can be issued.
22. The celebrated writ of habeas corpus has been described
as ―a great constitutional privilege of the citizen‖ or ―the
first security of civil liberty‖. The writ provides a prompt
and effective remedy against illegal detention and its
purpose is to safeguard the liberty of the citizen which is a
precious right not to be lightly transgressed by anyone. The
imperative necessity to protect those precious rights is a
lesson taught by all history and all human experience. Our
founding fathers have lived through bitter years of the
freedom struggle and seen an alien government trample
upon the human rights of our citizens. It is for this reason
that they introduced Article 21 in the Constitution and
provided for the writs of habeas corpus, etc.‖
29. The respondent-detaining authority has not during the pendency of this
writ petition apprised this Court that the alleged illegal activities of the
petitioner are continuing even after the passing of the impugned detention
order. A period of more than one year has elapsed since the passing of the
impugned detention order and the proximity and live link between the
past activities of the petitioner and the object of his detention may have
withered down. This Court in its opinion is also fortified with the
authoritative judgment of the Hon’ble Supreme Court cited as (2008) 16
19 HCP No. 83/2023
SCC 31 in which it has been inter alia held, ―detention order was in
respect of activities allegedly indulged in by appellant as far back as in
2002 – Fair submissions on behalf of respondent-Union of India that since
detention order was passed, appellant has not indulged in similar activities
– Hence, continuing of detention order today is an exercise in futility and
the same should not, therefore, be given effect to any further – However,
this will not prevent respondents in future to pass any similar order in the
event similar allegations are raised against appellant.‖
30. This court is also fortified in its opinion with the authoritative law laid
down by a larger Bench of the Hon’ble Supreme Court of India in “Sk.
Serajul Vs. State of W.B”, 1975 AIR SC 1517, to the effect that undue
delay after the alleged incidents before the order of detention was passed
and again after order of detention and before actual arrest of the petitioner
raises a reasonable suspicion as regards the genuineness of the alleged
subjective satisfaction of the detaining authority.
31. This Court is also supplemented in its opinion with an authoritative
judgment of the Division Bench of this Court passed in Mohd. Yousuf &
anr. Vs. UT of J&K and Ors. 2023 (4) JKH [HC] 370 in which the
impugned detention order was quashed at the pre-execution stage.
32. There is record on the file suggestive of the fact that father of the
petitioner had also filed a representation on behalf of the petitioner, which
was not considered.
33. The preventive detentions need to be passed with great care and caution
keeping in mind that a citizens most valuable and inherent human right is
20 HCP No. 83/2023
being curtailed. The arrests in general and the preventive detentions in
particular are an exception to the most cherished fundamental right
guaranteed under Article 21 of the Constitution of India. The preventive
detentions are made on the basis of subjective satisfaction of the detaining
authority in relation to an apprehended conduct of the detenu by
considering his past activities without being backed by an immediate
complaint as in the case of the registration of the FIR and, as such, is a
valuable trust in the hands of the trustees. The provisions of Clauses (1)
and (2) of Article 22 of our Constitution are not applicable in the case of
preventive detentions. So, the provisions of Clause (5) of the Article 22 of
our Constitution, with just exception as mentioned in Clause (6), together
with the relevant provisions of the Section 8 of PSA requiring for
application of mind, subjective satisfaction, inevitability of the detention
order, proper and prompt communication of the grounds of detention and
the information of liberty to make a representation against the detention
order, are the imperative and inevitable conditions rather mandatory
requirements for passing of a detention order.
34. For the foregoing discussion, there appears to be merit in the instant
petition, which is allowed and consequently the impugned detention order
bearing No. 19 PSA of 2023 dated 01.10.2023 passed by the respondent
No.3 is quashed. The respondents are restrained to take the petitioner in
custody on the basis of the impugned order, set aside. However, this will
not prevent the respondents in future to pass any similar order in justified
circumstances.
21 HCP No. 83/2023
35. The detention record is directed to be returned back to the office
of the learned Additional Advocate General concerned against proper
acknowledgment.
36. Disposed off.
(Mohd. Yousuf Wani)
Judge
JAMMU :
26.11.2024
Pawan Chopra
i) Whether the Judgment is speaking: Yes
ii) Whether the Judgment is reportable: Yes
Pawan Chopra
2024.11.28 19:03
I attest to the accuracy and
integrity of this document