Page 1 of 10 WP(Crl) No. 52/2023

HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT SRINAGAR

WP(Crl) No. 52/2023

Reserved On: 21

st

July 2023

Pronounced on: 8

th

August 2023

Amir Farooq Dar.

….. Petitioner(s)

Through: Mr. Wajid Mohammad Haseeb, Advocate.

V/s

Union Territory of JK & Anr.

…..Respondent(s)

Through: Mr. Taha Khaleel, Assisting Counsel vice

Mr. Mohsin S. Qadri, Sr. AAG.

CORAM:

HON’BLE MR. JUSTICE RAJESH SEKHRI, JUDGE.

JUDGMENT

1. The petitioner (detenue, for short) through his mother has invoked

writ jurisdiction of this Court for the issuance of appropriate writs in the

nature of Certiorari, for quashment of detention order, No. DMS/PSA/

03/2023 dated 2

nd

January 2023, passed by Respondent No. 2 (the

Detaining Authority, for short) and Mandamus, commanding the

respondents to release his person and pay compensation of Rs. 2.00 lacs for

illegal detention.

2. The detenue has assailed the impugned order of detention on

multiple grounds, however, learned counsel for the detenue has confined

his argument primarily on the grounds that allegations attributed to him in

the grounds of detention may be a law and order problem but do not qualify

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to fall within the definition of Public Order under Section 8 of the J&K

Public Safety Act, 1978 (PSA, for short), the grounds of detention are

vague, as there is no specific allegation regarding his involvement in the

unlawful activities attributed to him and that respondents have failed to

consider his representation.

3. The respondents in their counter affidavit are affront with the

contention that since activities of the detenue were found prejudicial to the

maintenance of Public Order, his preventive detention was recommended

by the concerned police station, a Dossier duly, supported by relevant

material, was submitted to the District Magistrate, Srinagar who on careful

examination of the same, has concluded that preventive detention of the

detenue was necessary. Therefore, impugned detention order has been

passed, with the sole object to deter the detenue from acting in any manner

prejudicial to the maintenance of Public Order. The warrant was executed

by the Executing Officer and detenue was handed over to Superintendent

Central Jail, KotBhalwal, Jammu, for his lodgement, where contents of

detention order/warrant and grounds of detention were read over and

explained to him in the language understood by him and he subscribed his

signatures on the execution order in support thereof. Detenue was provided

copies of the detention order along with grounds of detention against

proper receipt and he was also informed of his right to make a

representation. Later, the impugned detention order came to be approved

and confirmed by the Government vide order dated 6

th

January 2023.

According to the respondents, the detention of the detenue in the present

case is precise and proximate and since all statutory, constitutional

provisions and legal formalities of PSA have been followed, there is no

vagueness in the grounds of detention.

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4. According to the respondents, detenue was found involved in

various anti-national and nefarious activities in order to disturb public

peace and prejudicial to the maintenance of Public Order. The satisfaction

expressed by the detaining authority is a result of thoughtful deliberation,

rendering the impugned detention order lawful and well founded.

5. Having heard rival contentions, I am of the considered view that

impugned detention order is not sustainable in the eyes of law for the

following reasons.

6. Before a closer look at the grounds of challenge urged in the

petition, it shall be apt to have an overview of the background facts.

7. The detention in the present case traces the genesis to FIR No.

94/2022 for offences under sections 341, 392, 506 and 120-B of Police

Station Zakura. The allegations to form basis for the impugned detention

order, are that detenue came into contact with instigators and disgruntled

elements, who motivated him to indulge in extortion and other anti-

national/illegal activities, bearing a threat to the maintenance of Public

Order. He formed a gang of other disgruntled elements in district Srinagar

and started hatching a conspiracy with the object to threaten common

people and forcibly extort their hard earned money by illegal means, which

created a sense of fear amongst the masses, resulting into a feeling of

insecurity and resentment for the police and administration. It is also

alleged that after the said gang was busted by District Police Srinagar, with

great strategy and hard work, the general public heaved a sigh of relief. It is

pertinent to underline that on the basis of this allegation, the detenue was

booked in the aforesaid FIR and has been put under preventive detention on

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the apprehension that he will be enlarged on bail, which is a cause of

concern for the concerned police.

8. In view of the background facts, detailed in the preceding para, a

question to be discoursed and squared offis whether allegations mentioned

in the grounds of detention, on the basis of which single FIR came to be

lodged against the detenue, would constitute an act having potentiality to

disturb public order within the meaning of Section 8 of PSA and if the

answer is “No”, the impugned detention order is not only illegal, but

unconstitutional and is liable to be struck down. It is because if relevant

provisions of the penal code are sufficient to deal with the allegations of

extortion against the detenue and ordinary law of the land can deal with a

criminal activity, recourse to PSA or preventive detention laws shall be

illegal. I am fortified in my opinion by an observation made by a

Coordinate Bench of this Court in “Abdul Hamid Dar vs UT of JK &

Ors” [WP(Crl) No. 325/2022], relevant excerpt whereof reads thus:

“.....Mere contravention of law such as indulging in cheating

or criminal breach of trust certainly affects „Law and Order‟

but before it can be said to affect public order, it must affect

the community or public at large. The nature of criminal act,

the manner in which it is committed and its impact are some

of the factors that determine whether a particular act would

fall within the realm of “Public Order” or “Law and Order”.

What is alleged in the FIR, which is sole basis of putting the

detenue under preventive detention, clearly falls within the

ambit of term “law and order”. Unless the criminal act

attributed to the detenue has the effect of disturbing the even

tempo of life of community or public at large, it would remain

in the realm of “Law and Order” and thus cannot be made the

basis of preventive detention.”

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9. It is manifest from the aforequoted observation of this Court that

there is marked difference between the terms “Public Order” and “Law and

Order”. They operate in different fields. While in the former case, public at

large is affected by a criminal activity of a person, however, a particular

individual or individuals are affected by a particular criminal activity of a

person in the later case. Mere breach of law by indulging in a criminal

activity can be termed as a law-and-order problem but does not have the

potentiality of disturbing the Public Order.

10. Back to the case, detenue in the present case has been detained on

the apprehension that he may succeed to secure bail from the Court, which

is a cause of concern for the concerned police.Be it noted, that an accused

has a right to seek his enlargement on bail from a competent Court of law,

and if chooses to exercise this right, prosecution is also well within its right

to oppose the plea at the motion stage and if accused succeeds in his

endeavour, the prosecution or State or Union Territory, as the case may be,

has efficacious remedy under ordinary law of the land to seek cancellation

of his bail, even by approaching the higher forum. It goes without saying

that even grant of bail to an accused in a criminal case, does not debar the

Detaining Authority to pass an order of preventive detention, if his

preventive detention is necessitated by law.

11. What has been said, held and laid down regarding the issue by

Hon‟ble Supreme Court in Banka Sneha Sheels vs. State of Telangana &

Ors reported as (2021) 9 SCC 415, is significant and important to be

discoursed off. It reads thus:

“There can be no doubt that what is alleged in the five FIRs

pertain to the realm of “Law and Order” in that various acts

of cheating are ascribed to the Detenu which are punishable

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under the three sections of the Indian Penal Code set out in

the five FIRs. A close reading of the Detention Order would

make it clear that the reason for the said order is not any

apprehension of widespread public harm, danger or alarm

but is only because the Detenu was successful in obtaining

anticipatory bail/bail from the Courts in each of the five

FIRs. If a person is granted anticipatory bail/bail wrongly,

there are well-known remedies in the ordinary law to take

care of the situation. The State can always appeal against the

bail order granted and/or apply for cancellation of bail. The

mere successful obtaining of anticipatory bail/bail orders

being the real ground for detaining the Detenu, there can be

no doubt that the harm, danger or alarm or feeling of security

among the general public spoken of in Section 2(a) of the

Telangana Prevention of Dangerous Activities Act is make

believe and totally absent in the facts of the present case.”

12. It is manifest from aforequoted proposition of law enunciated by

the Apex Court that a person cannot be put under preventive detention on

mere apprehension that he may succeed in securing a bail in his favour.

The case law cited at Bar by learned counsel for the respondent-UT is

distinguishable on facts and circumstances of the present case for the

following reasons.

13. In Muntazir Ahmad Bhat vs Union Territory of JK &Anr,

detenue was released on bail in a case for offences under Sections 302, 307

RPC read with Section 7/22 Arms Act and 4/5 Explosive Substances Act.

He continued to engage in subversive activities, prejudicial to the security

of the State and was again arrested in second FIR for offences under

Section 121 of IPC read with Sections 18, 20 and 39 UA(P) Act, in which

he was again admitted to bail. He was also found involved in other FIR in

respect of offence 7/25 Arms Act and 23 UA(P) Act. It is in this backdrop

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that learned Division Bench has concluded that from the conduct of the

detenue, it could be reasonably inferred that he would continue to engage

in prejudicial acts after his release on bail, which warranted his preventive

detention under the Act. In the present case, as already stated, there is

single FIR registered against the detenue with respect to allegations of

extortion and there is no other case registered against him with respect to

any subversive activity prejudicial to the Security of the State.

14. The detenue in the present case has been booked in sole FIR and

there is nothing to suggest that ordinary law of the land is not competent to

deal with the situation. The allegations levelled against the detenue may be

a serious law-and-order problem but certainly do not fall within the

category of „Public Order‟. The apprehension of the Detaining Authority or

the cause of concern of the concerned police that enlargement of the

detenue will have an impact upon public faith, is unfounded and cannot

form basis for putting him under preventive detention. The prosecution

wing of the Union Territory is well within its competence to oppose the

bail of an accused at the relevant stage and in the event of grant of bail, to

have recourse to the remedies available to it under law, even by

approaching higher forums for cancellation of bail. The impugned order is

liable to be quashed on this ground alone.

15. The detenue has also assailed the impugned order on the ground of

vagueness of allegations that there is no specific allegation in the grounds

of detention of his involvement in the unlawful activities attributed to him.

Allegations against the detenue in the grounds of detention are as follows:

“…With the passage of time you came into contact with

instigators and disgruntled elements, who motivated you to

Page 8 of 10 WP(Crl) No. 52/2023

indulge in extortion and other anti-national/illegal

activities which are bearing a threat to the maintenance of

Public Order also. You got motivated rapidly and

organized/formed a gang of other disgruntled elements in

district Srinagar and started hatching a conspiracy,whose

objective was to threaten the common people and forcibly

extort their hard earned money by various illegal means.

This created sense of fear amongst the masses, which

resulted into a feeling of insecurity and resentment for

police and administration. However, after busting the said

gang by the District Police Srinagar with great strategy

and hard work, general public have a sigh of relief and

also appreciated the action taken against you by District

Police.”

16. On the basis of these vague and general allegations, detenue has

been booked in the solitary FIR. There is no other case registered against

him. Had the detenue been a chronic miscreant/ instigator/ extortionist or a

propagator of public nuisance, as claimed by the Detaining Authority in the

grounds of detention, he would have been booked under multiple cases and

could be dealt with in accordance with the ordinary law of land. These

general allegations as also apprehension of the Detaining Authority that

detenue may succeed to obtain a bail order in his favour, do not satisfy the

requirements envisaged under Section 8 of PSA, inasmuch as such

allegations and unfounded apprehension of the Detaining Authority have

no connection with the maintenance of Public Order. The sole criminal

activity attributed to the detenue does not appear to have disturbed normal

life of the people of Kashmir in general and Srinagar city in particular.

17. Hon‟ble Supreme Court, in a similar fact situation, in

Jahangirkhan Fazalkhan Pathan vs Police Commissioner, Ahmedabad

Page 9 of 10 WP(Crl) No. 52/2023

&Anr reported as (1989) 3 SCC 590, in which detenue was involved in

illegal activity of bootlegging, by showing deadly weapons like Ram Puri

knife and beating innocent persons, who oppose his activity of bootlegging

etc.has made following observation:

“These statements are vague and without any particulars as to

what place or when and to whom the detenu threatened with

Rampuri knife and whom he has alleged to have beaten. These

vague averments made in the grounds of detention hereinbefore

are bad in as much as the detenu could not make an effective

representation against the impugned order of detention. As such

the detention order is illegal and bad….”

18. It is evident from the afore quoted observation of Hon‟ble

Supreme Court that Detaining Authority is obliged to give details of all the

criminal activities attributed to the detenue. In the present case, Detaining

Authority has failed to provide particulars as to at what place or when and

whom the detenue instigated, or extorted money from and propagated

public nuisance. Therefore, in view of vagueness of allegations made in the

grounds of detention, detenue was prevented to make an effective

representation against the impugned order of detention.

19. The detenue has also challenged the impugned detention order on

the ground of non-consideration of his representation. It is contention of the

detenue that post detention, he submitted a representation to Respondent

No. 2, however, same was not accorded consideration and, therefore, he

could not make an effective representation, before the Government and to

the Advisory Board. This contention of the detenue runs contrary to his

submissions made in the preceding paras of the petition that post execution

he was not given any opportunity to make representation and he was not

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informed that he has a right to make representation. Although, copy of

representation has been placed on record and receipt is also there to

confirm delivery on 9

th

February 2023, however, record bears testimony to

the fact that impugned order of detention came to be passed on 2

nd

January

2023 and approved by the Government on 6

th

January 2023 and confirmed

by the Advisory Board on 23

rd

January 2023. In these circumstances any

representation made by the detenue after approval and confirmation of the

detention order by the Government is of no consequence.

20. In the context of what has been observed and discussed above, it is

held that if ordinary law of the land is competent enough and sufficient to

deal with the criminal activity of a person, recourse to PSA or preventive

detention laws shall be illegal and unconstitutional. A person cannot be put

under preventive detention on mere apprehension that he may be enlarged

on bail by a competent Court of law. The Detaining Authority is obliged to

provide in clear terms the complete particulars of the criminal activity

attributed to the detenue.

21. Having regard to the aforesaid, the present petition is allowed and

impugned order of detention being illegal and unconstitutional, is quashed.

Consequently, detenue is directed to be immediately released from

detention, provided he is not involved in any other case.

22. Disposed of.

(Rajesh Sekhri)

Judge

SRINAGAR:

08.08.2023

“Hamid”

i. Whether the Judgment is Speaking? Yes

ii. Whether the Judgment is Reportable? Yes