Jammu & Kashmir High Court
Zafar Iqbal Choudhary vs Ut Of Jammu And Kashmir on 26 November, 2024
1
S. No. 12
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on: 26.11.2024
Case No. :- HCP No. 29/2024
CM No. 1025/2024
Zafar Iqbal Choudhary,
Age 36 years,
S/o Bagh Hussain Choudhary,
R/o Salwa, Tehsil Mendhar,
District Poonch, 185101.
At present Central Jail, Jammu
(Kot Bhalwal).
Through his father
Bagh Hussain, Age 72 years,
S/o Mir Mohd. R/o Kasablari,
Tehsil Mankote, District Poonch,
185101. ..... Petitioner(s)
Through: Mr. Sunil Sethi, Sr. Advocate with
Mr. Zeeshan Rana, Advocate.
Vs
1. UT of Jammu and Kashmir
through Financial Commissioner,
(Addl. Chief Secretary),
Home Department, J&K.
2. District Magistrate,
Bandipora.
3. Director General of Police,
Prisons Department, J&K.
4. Special Director General of
Police, CID, J&K.
5. Senior Superintendents of Police
CID, CIK, Srinagar.
6. Senior Superintendent of Police,
Bandipora
7. Superintendent Central Jail,
Jammu. ..... Respondent(s)
Through: Mr. Pawan Dev Singh, Dy.A.G.
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 through his father, is the
2 HCP No. 29/2024
order of Detention bearing No. 01/DMB/PSA of 2024 dated 15.02.2024
passed by the respondent No.2 i.e. District Magistrate, Bandipora
(hereinafter referred to as the “detaining authority”, for short), while
invoking his powers under Section 8(1) (a) (i) of the Jammu and Kashmir
Public Safety Act, 1978 (hereinafter referred to as the “Act”, for short),
whereby the petitioner/detenu 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 petitioner has sought for the issuance of the writs of certiorari and
mandamus for quashment of the impugned detention order and his
immediate release from the alleged unlawful custody.
3. The order impugned has been assailed on the grounds inter alia that the
petitioner is a Citizen of India and a domicile of UT of Jammu and
Kashmir, as such, entitled to all legal and fundamental rights guaranteed
under the Constitution; that he is filing the petition through his father on
account of his inability to do the same in person as being under detention;
that the dossier submitted by respondent No.6 to the detaining authority
bearing No. Lgl/PSA-02/2024/5422-28 dated 07.02.2024, the impugned
detention order bearing No. 01/DMB/PSA of 2024 dated 15.02.2024
issued by the detaining authority and the consequent detention notice
bearing No. DMB/PSA/2024/16-18 15.02.2024 are illegal, arbitrary and
violative of the principles of natural justice; that an FIR was registered
with Police Station, Bandipora bearing No. 12/2024 under Sections 420,
506 IPC against the petitioner on 18.01.2024 in which he has already been
granted bail by the competent court on 06.02.2024; that unfortunately
3 HCP No. 29/2024
immediately after the petitioner‟s being bailed out in the said case FIR,
the respondent No.6 owing to his hostile attitude towards the petitioner
framed a dossier and submitted the same under his No. Lgl/PSA-
02/2024/5422-28 dated 07.02.2024 to the detaining authority; that no
notice of the detention order as required under Section 13 of the Act was
served upon the petitioner; that the impugned order suffers from non-
application of mind and is devoid of the subjective satisfaction of the
detaining authority being the replica of the police dossier; that the
petitioner is alleged, as per the police dossier and the grounds of
detention, a repeated offender when only one case FIR stands registered
against him on false and frivolous grounds; that the allegations against the
petitioner in the case FIR registered against him are not so grave and
heinous as to attract the invocation of the Act against him; that the
complainant of the case FIR No. 12/2024 registered against the petitioner
in Police Station, Bandipora has sworn an affidavit to the effect that
petitioner has returned the money to him and there is nothing outstanding
from him; that the impugned order is violative of the principles of natural
justice and the fundamental right of the petitioner guaranteed under
Article 21 of the Constitution; that even if the grounds of detention are
supposed to be true yet they do not amount to a situation prejudicial to the
maintenance of public order as mentioned in para 8 (3) of the Act and that
the detaining authority has not mentioned the period of detention when as
per the provisions of the Act, the detention period in the circumstances of
the instant case could have been three months in the first instance
extendable for a total period of 12 months.
4 HCP No. 29/2024
4. The respondents through the counter affidavit filed by the detaining
authority have resisted the instant petition on the grounds that same is not
maintainable for want of a cause of action as none of the fundamental,
constitutional, statutory or legal rights of the petitioner stands
violated/infringed. That the subjective satisfaction drawn by the detaining
authority before the detention of the petitioner under the Preventive
Detention Act cannot be questioned on the ground of insufficiency of the
incriminating material against the detenu and the observance of the
procedural safeguards by the detaining authority leaves a little scope for
the detenu to assail the impugned order. That the impugned order was
passed with a view to prevent detenu from acting or indulging in activities
prejudicial to the public order. That the impugned order does not suffer
from any malice or infirmity and, as such, the challenge thrown to it is
misdirected and misconceived. That the petitioner has not approached this
Court with clean hands and has tried to mislead this Court by sheer
misrepresentation of facts. That the writ petition raises pure disputed
question of facts, which cannot be adjudicated upon in a writ petition.
That the writ petition is not maintainable as the detenu has not availed the
alternate remedy by filing representation against his detention despite
communication of such right to him. That all the procedural safeguards
enshrined in Article 22 (5) of the Constitution of India as well as the
provisions of the Act, while directing the detention of the detenu have
been observed in full. That the liberty of the petitioner is subservient to
the welfare, safety and interests of the society at large and the detaining
authority has exercised the power within the ambit of law. That the
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petitioner is a habitual offender and has defrauded a large chunk of
population of the District, Bandipora. That 08 complaints have been
received against the petitioner to the effect that he has received huge
amount from the public upon cheating and deception by projecting a
highly influential person, who can provide them government jobs and get
their pending matters with the government solved. That the impugned
detention order has been passed on the subjective satisfaction of the
detaining authority, who applied its mind to the material brought against
the detenu. That the copies of the detention record were furnished to the
petitioner who was also informed of his right to make a representation
against his detention. That the petitioner was found involved in case FIR
No. 12/2024 under Sections 420, 506 IPC registered with Police Station,
Bandipora. That the petitioner was ordered to be detained by way of a
preventive measure as his activities were highly prejudicial to the
maintenance of public order. That the impugned detention order does not
suffer from any illegality or incorrectness.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the petitioner/detenu while reiterating his stand
taken in his petition contended that order impugned is not sustainable
under law as the same suffers from patent illegality and perversity. He
contended that the allegations leveled against the petitioner even if
supposed to be true for the sake of arguments do not amount to a conduct
which can be termed as prejudicial to the maintenance of the public order
as denied under Section 8 (3) of the Act. That the grounds of detention are
just the replica of the police dossier and, as such, the impugned detention
6 HCP No. 29/2024
order is devoid of application of mind on the part of detaining authority.
That the procedural safeguards mandated under Article 22 (5) of the
Constitution have not been observed by the detaining authority. That the
copies of the detention record were not furnished to the detenu in full and
in time, thus, preventing him from making an effective representation in
respect of his detention before the Government. That the petitioner/detenu
was falsely and frivolously involved in a case FIR bearing No. 12 of 2024
registered with Police Station, Bandipora in which he was granted bail by
the competent court and despite his being on bail he was detained by
misusing the provisions of the Act. The learned counsel contended that
there was no material at all available with the detaining authority to take a
view that the petitioner is a habitual offender. The learned counsel in
support of his contentions placed reliance on the authoritative judgments
cited as Surya Prakash Sharma Vs. State of U.P and others, WP (Crl)
No. 117 of 1994, decided on 09.08.1994, Javaid Ahmad Najar Vs. UT
of J&K and others, LPA No. 40/2022, decided on 23.05.2022,
Muhmmad Lateer Dar Vs. UT of J&K and another, WP (Crl) No.
134/2021, decided on 01.02.2022, Amjad Khan Vs. State and others,
WP (Crl) No. 71 of 2019, decided on 19.03.2020 and Sajad Ahmad
Bhat Vs. UT of J&K and another, WP (Crl) No. 127/2022, decided on
07.11.2022.
7. The learned counsel for the petitioner prayed for the quashment of the
impugned detention order and release of the detenu.
8. Per contra, the learned State counsel for the respondents vehemently
submitted that the learned detaining authority was compelled to invoke
7 HCP No. 29/2024
the provisions of the Act and to detain the petitioner whose activities were
highly prejudicial to the maintenance of the public order. He contended
that the detenu was repeatedly cheating and deceiving the people of
Bandipora by projecting a highly influential person having access to the
Government machinery and thereby he used to extract huge amounts of
money from the innocent people of far flung areas of District, Bandipora
under the pretext that providing government jobs for their children and
managing to get through their pending matters with the Government. That
an FIR was registered against the petitioner on 18.01.2024 with the Police
Station, Bandipora under Sections 420/506 IPC in which the Investigating
Officer collected sufficient evidence to the involvement of the detenu.
That so many persons filed complaints against the detenu upon knowing
his conduct and from which it was learnt that he had duped a sizeable
population of Bandipora by extracting money from them. The learned
State counsel submitted that the impugned order was passed by the
detaining authority after proper application of mind in the light of the
material brought before him by the District Police Superintendent. He
contended that all the procedural requirements mandated under the
Constitution as well as under the Act were fully observed. The learned
counsel further submitted that it is settled law that it is not the quantity of
the incriminating material which is required for invoking the provisions of
the Act but the gravity of the actions of the detenu. He contended that
having regard to the conduct of the detenu, there was every reasonable
apprehension that the detenu if kept at large will likely disturb the social
8 HCP No. 29/2024
order in the locality. The learned State counsel prayed for the dismissal of
the writ petition.
9. I have perused the record of the instant petition and the counter affidavit
filed by the detaining authority. I have also gone through the detention
record produced by the learned State counsel.
10. Keeping in view the aforementioned perusal and the consideration of rival
arguments advanced on both the sides, in the light of the law on the
subject, this Court is of the opinion that impugned detention order suffers
from illegality and incorrectness, thus, deserving its quashment.
11. It is undisputed that only one case FIR No. 12/2024 under Sections 420,
506 IPC stood registered against petitioner with the Police Station,
Bandipora at the time of passing of the impugned detention order. The
allegation as per the said case FIR appears to be that the detenu had
cheated the complainant and extracted money from him where-after he
had also intimidated the complainant. The said FIR was registered against
the petitioner on 18.01.2024, who came to be subsequently bailed out in
the case FIR by the competent criminal court on 06.02.2024. Besides the
aforesaid FIR, some 8 persons are also alleged to have filed complaints
with the Police Station, Bandipora alleging extraction of money by the
petitioner from them on account of providing of government jobs and
facilitating them in other matters. The police dossier as well as the
grounds of detention are silent as to what action was taken on the 8
complaints received against the petitioner.
12. In the light of the definitions of the public order as given under Section
8 (3) of the Act together with the interpretations accorded to the term,
9 HCP No. 29/2024
“public order” by the Hon‟ble Apex Court and various authoritative High
Courts of the Country, this Court is of the view that the allegations against
the petitioner/detenu which were brought before the detaining authority
through the police dossier were not amounting to breach of public order.
It is profitable to reproduce the provisions of Clause (3) of Section 8 of
the Act for ready reference:-
“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;]
[(e) “Liquor” includes all alcoholic beverages including
beer]”.
10 HCP No. 29/2024
13. The allegations against the petitioner were of such a nature which could
have been taken care of under the normal criminal law as was already
done by the Police Station, Bandipora on a complaint which led to the
registration of FIR No. 12/2024.
14. There is a marked difference between disturbance relatable to “law
and order” and disturbance caused to “public order”. It is well
settled that breach of law in all cases does not lead to “public
disorder”.
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
11 HCP No. 29/2024
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
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:-
12 HCP No. 29/2024
“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. ***
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
13 HCP No. 29/2024drugs 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.”
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 in which it has been held at para 40
of the judgment as under:-
14 HCP No. 29/2024
“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
anticipates 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.
15 HCP No. 29/2024
The said case involved a collective petition by Sushanta Goswami and 46
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 were 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.
The Court‟s legal reasoning hinged on interpreting “public order”
with precision. It delineated between general disturbances of law and
16 HCP No. 29/2024order 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, Bandipora 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 was all
sufficient to deal with. The invocation of the provisions of the Act to
detain the petitioner rather than to deal with him under the general
criminal law appears to be an unjustified exercise tentamounting to
violation of the fundamental rights of the petitioner. Under these
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 be sustained
under law.
17 HCP No. 29/2024
26. The learned detaining authority appears to have followed the police
dossier without application of mind.
This Court in cases titled “Naba Lone Vs. District Magistrate,
1988 SLJ 300” and “Mohd. Farooq through Mohd. Yousuf Vs. UT of
J&K and others, WP (Crl) No. 17/2023”, decided on 03.09.2024 has
laid down the law to the effect, “the grounds of detention supplied to the
detenu is a copy of dossier, which was placed before the District
Magistrate for his subjective satisfaction in order to detain the detenu.
This shows total non-application of mind on the part of the Detaining
Authority as he has dittoed the Police directions without applying his
mind to the facts of the case.”
27. 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 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),
18 HCP No. 29/2024
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.
28. It was submitted by learned counsel for the petitioner during his
arguments that the copies of the detention record were not in entirety and
in time furnished to the detenu which prevented him from making an
effective representation to the detaining authority or to the government. It
is being repeatedly observed that signatures of the detenus are taken on
previously computerized/cyclostyled receipts mentioning the title of the
documents and the number of pages. A detenu is deemed to be under
undue influence at the time he is required to sign on the receipt. The same
is also true in case of the document disclosing that detenu was informed
of his right to move a representation to the detaining authority or the
government. Such receipts in view of the involvement of the infringed
right of the detenu to his liberty ought to be obtained under the own
handwriting of the detenu or in case of his inability to do so on account of
his illiteracy, the same can be required to be written preferably by any
available public servant or a civilian at the instance of the detenu and
signed by him.
29. The contention of the learned counsel for the petitioner to the effect that
the detention order is bad on account of non-mention of the period of the
19 HCP No. 29/2024
detention by the detaining authority is not justified because there is a set
mechanism under the Act for determining the period by the government
after the opinion of the Advisory Board. A detention order under the Act
shall not be valid unless approved by the government within a period of
12 days. Secondly, the detention order has necessarily to be referred for
the opinion of the Advisory Board by the government within four weeks
from the date of the detention of the detenu. Under Section 17 of the Act,
the Government may confirm the detention order and continue the
detention of the person concerned for such period as it thinks fit provided
the Advisory Board reports that there is in its opinion sufficient cause for
the detention of the person. In case the Advisory Board is of the opinion
that there is no sufficient cause for detention of the person concerned, the
government shall revoke the detention order and cause the person to be
released forthwith. The mention of the detention period as such comes
after the opinion of the Advisory Board as is evident from the provisions
of Section 18 of the Act. The government has the power to revoke or
modify the detention order even at any earlier time.
30. For the foregoing discussion, there seems to be merit in the instant
petition, which is allowed and consequently the impugned detention order
bearing No. 01/DMB/PSA of 2024 dated 15.02.2024 passed by the
respondent No.2 i.e. District Magistrate, Bandipora is quashed. The
petitioner/detenu is directed to be released forthwith from his preventive
detention in the instant case.
20 HCP No. 29/2024
31. The detention record is directed to be returned back to the office
of the learned Deputy Advocate General concerned against proper
acknowledgment.
32. 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 14:06
I attest to the accuracy and
integrity of this document