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2012 DIGILAW 646 (JK)

Varinder Gupta v. State of J&K and Ors.

2012-10-08

MUZAFFAR HUSSAIN ATTAR

body2012
(Oral) Detention order No. 01/PSA of 2012 dated 11.04.2012 passed by respondent No. 2 is called in question in this petition at pre-execution stage. The court vide its order dated 24.07.2012 directed that the petitioner shall not be detained till next date. This interim direction is still in force. This petition was initially filed by the mother of the petitioner. Thereafter, petitioner was permitted to file an affidavit in support of the petition. 2. Respondents 1, 3, 4 and 5 have filed objections in respect of the maintainability of the writ petition. 3. Learned counsel for the petitioner submitted that a civil dispute is going on between the some of the parties in this petition and the petitioner has been dragged into the controversy, because he was cited as witness in one of the complaints filed against respondent No. 5. Learned counsel submitted that the grounds urged in the grounds of detention are stale and there is no live-link between the alleged activities and that of the petitioner. Learned counsel also submitted that case FIR No. 71/1999, about which reference is made in the grounds of detention, a final report under Section 173 Cr. P. C. was filed before the learned Chief Judicial Magistrate, Jammu and learned Magistrate vide its order dated 28.04.2008 has acquitted the petitioner of all the charges. Learned counsel also referred to some of FIRs, mention whereof is made in the grounds of detention and submitted some of them are old and other latest FIRs could not become basis for ordering detention of the petitioner, inasmuch as, allegations leveled therein would not affect the public order. Learned counsel submitted that the respondents have abused their authority, while ordering detention of the petitioner. Learned counsel submitted that in respect of two FIRs filed against the petitioner, writ petitions were filed, wherein request was made that the investigation be directed to be transferred to some independent agency. Learned counsel submitted that said writ petitions were disposed of by the court, in view of the stand taken by the respondents that report under Section 173 Cr.P.C. has been filed in both the cases before the court of competent jurisdiction. Learned counsel submitted that petitioner has challenged the orders passed in the said two writ petition viz. OWP No. 149/2012 and OWP No. 379/2012, before Letters Patent Bench of the court. 4. Learned counsel submitted that petitioner has challenged the orders passed in the said two writ petition viz. OWP No. 149/2012 and OWP No. 379/2012, before Letters Patent Bench of the court. 4. Learned counsel submitted that order of detention is illegal and would require to be set aside. Learned counsel submitted that the Police authorities have withheld the some material from the detaining authority and the detaining authority, in such circumstances, has filed to apply its mind to the case, which renders the detention order illegal. Learned counsel, in support of his contention, referred to and relied upon, case titled K. K. Sarvana Babu, appellant v. State of Tamil Nadu and anr., respondents reported in (2008) 9 Supreme Court cases. 89. Learned counsel, in particular, referred to paragraph 22 and 26 of the said judgment and, inter alia, submitted that it has been explained by the Hon'ble Supreme Court that the "public order" and "law and order" are two different concepts and that when bail was granted to the accused, the authorities shall have to challenge the order before the competent Forums. Learned counsel also referred to judgment of the Hon'ble Supreme Court in case titled Subash Popatlal Dave v. Union of India and anr. 2012 STPL(Web) 356 SC and submitted that the Hon'ble Supreme Court has specifically mentioned that five grounds enumerated in Alka's Subash Gadia's Case are only illustrative and not exhaustive. Learned counsel also referred to case titled Depak Bajaj v. State of Maharastra and anr. reported in JT (2008) 11 SC 609. 5. Mr. Gagan Basotra, learned Sr. AAG appearing for the respondents submitted that, in the facts and circumstances of this case, it had become necessary for the competent authority to order for detention of the petitioner in terms of J&K Public Safety Act, 1978 (for short Act of 1978). Learned counsel submitted that an extra-ordinary strong case has to be made out by the petitioner for seeking annulment of the detention order at pre-execution stage. Learned counsel referred to judgment of the Hon'ble Supreme Court in case titled State of Maharastra and ors v. Bhauro Punjabrao Gawande reported in (2008) 3 Supreme Court Cases 613. Learned counsel submitted that an extra-ordinary strong case has to be made out by the petitioner for seeking annulment of the detention order at pre-execution stage. Learned counsel referred to judgment of the Hon'ble Supreme Court in case titled State of Maharastra and ors v. Bhauro Punjabrao Gawande reported in (2008) 3 Supreme Court Cases 613. Learned counsel invited the attention of the court to paragraph 63 of the said judgment and submitted that the Hon'ble Supreme Court has held that as a general rule, an order of detention passed by the detaining authority under the relevant "preventive detention" law cannot be set aside by a writ court at the pre-execution or pre-arrest stage unless the court is satisfied that there are exceptional circumstances specified in Alka Subash Gadia's case. Learned counsel submitted that the judgment of the learned Chief Judicial Magistrate, Jammu dated 28.04.2008 has resulted in acquittal of the petitioner, for the reason that the prosecution witness did not appear before the court to support the case of the prosecution. Learned counsel, while referring to the grounds of the detention, submitted that the petitioner is a history sheeter and is a known criminal and in order to prevent him from indulging in activities which would affect the public order, it had become necessary for the competent authority to order for his detention in accordance with the mandate contained in section 8 of the Act of 1978. Learned counsel, accordingly, prayed for dismissal of the writ petition. 6. Right to life and personal liberty is guaranteed fundamental right under Article 21 of the Constitution of India. A person can be deprived of his life and personal liberty only in accordance with procedure established by law. Article 22 of the Constitution of India provides for detaining a person under preventive detention law. However, all the defences available to a detenu, have been made available in the said provision of the Constitution. 7. In a society governed by rule of law, the right to life and personal liberty of an individual has to be zealously guarded. In a society, like ours, which is governed by rule of law, rights of an individual are to be regulated in the larger interest of the society. An individual is a part of big whole called "society". In a society governed by rule of law, the right to life and personal liberty of an individual has to be zealously guarded. In a society, like ours, which is governed by rule of law, rights of an individual are to be regulated in the larger interest of the society. An individual is a part of big whole called "society". An Individual in the name of liberty cannot be permitted to impinge upon the rights of other members of the society. Preventive detention laws in a society, which is governed by rule of law and constitution, is a necessary evil. In order to maintain and preserve the public order, resort can be had to preventive detention laws, but in rarest and exceptional cases. 8. Reverting back to the facts of this case, what appears is that petitioner in view of the grounds urged in the detention order is a chronic offender. He has been undeterred even by registering many criminal cases against him and it appears that he has been regularly indulging in criminal activities. 9. True it is that a criminal act may sometimes only affect the "law and order" and not "public order". In this case, while referring to the criminal acts, which are alleged to have been committed by the petitioner and, more particularly, the incidents, which have taken place in the year 2012 itself and for which two FIRs viz. FIR No. 42/2012 and 80/2012, have been registered against him, it can be said that these activities of the petitioner would definitely have an effect on the tempo of life and thus, consequently on the public order. Relevant paragraphs of the grounds of the detention are taken note of: "OFFICE OF THE DISTRICT MAGISTRATE JAMMU Grounds of detention in respect of Varinder Kumar Gupta @ Kaka Chichdi S/o Banarsi Dass R/ o H. No. 41-F Gali No. 06 Talab Tillo, Jammu. Under the provision of J&K Public Saftey Act, 1978. Relevant paragraphs of the grounds of the detention are taken note of: "OFFICE OF THE DISTRICT MAGISTRATE JAMMU Grounds of detention in respect of Varinder Kumar Gupta @ Kaka Chichdi S/o Banarsi Dass R/ o H. No. 41-F Gali No. 06 Talab Tillo, Jammu. Under the provision of J&K Public Saftey Act, 1978. Whereas the senior Superintendent of Police, Jammu vide his letter No. CRP/Dossier/11 / 16275/DPOJ dated 07.04.2012 has submitted a dossier (copy enclosed) wherein it has been reported that you, Varinder Kumar Gupta @ Kaka Chichdi S/o Banarsi Dass R/o H. No. 41-F Gali No. 06 Talab Tillo, Jammu are a desperate character, hardcore criminal history sheeter and habitual or indulging in acts of violence, such as murder, attempt to murder and assault and involved in numerous criminal activities of serious heinous nature for a period of times and have spread a reign of terror amongst the peace loving people of the area and your activities are prejudicial to the maintenance of public order. As regards the details of the charges framed against you by the police as under: 1. FIR No. 152/2001 u/s 302/451/148/34 RPC, 3/25, 4/25 Arms Act P/ S Nowabad. 2. FIR No. 79/2010 u/s 4/25 Arms Act P/S Nawabad Jammu. 3. FIR No. 71 /1999 u/ s 307 RPC, 4/25 Arms Act P/S City Jammu. 4. FIR No. 42/2012 u/ sections 120-B/341/353/452/502/504/506/464/469/471 RPC/4/25 Arms Act P/S Gandhi Nagar, Jammu. 5. FIR No. 80/2012 u/s 4/25 Arms Act P/S Gandhi Nagar Jammu. Whereas you have no respect for the law and you are notorious criminal and close associates of known killers. You have become a chronic criminal and created fear of insecurity among the peace loving people of the Jammu city. Your activities are highly prejudicial to the maintenance of public order in the locality and among other areas. Moreover, you are having a criminal history of murder/attempt to murder case in the area of Jammu city and using your past deeds to create fear in the minds of general public. Whereas on 10.05.1999, one Rash Pal S/o Ram Singh caste Rajput r/o Near Dewan Wine Factory Talab Tillo Jammu driver of Auto No. JK02-9805, lodged a verbal report at P/S Bus Stand Jammu about 1.00 points that you and your associate namely Rajan S/o Udham Parkash R/o Talab Tillo Jammu working as .................... Whereas on 10.05.1999, one Rash Pal S/o Ram Singh caste Rajput r/o Near Dewan Wine Factory Talab Tillo Jammu driver of Auto No. JK02-9805, lodged a verbal report at P/S Bus Stand Jammu about 1.00 points that you and your associate namely Rajan S/o Udham Parkash R/o Talab Tillo Jammu working as .................... B.C Road Jammu and replied that you were going on your scooter and hit one auto driver namely Surinder Paul Bali. Who asked you to drive the scooter in control and you left from the spot. At about 1.30 hours you came back at B. C. Road Jammu and attacked the said auto driver namely Surinder Paul Bali with the criminal intention to kill Jiim with sharp edged weapon i.e. Khokhri and krich and injured him seriously. During the course of investigation you were attested along with your associates. On this case FIR No. 71/1999 u/s 307 RPC, 4/25 Arms Act registered against you at P/ S City Jammu (copy of FIR is enclosed). Whereas on 01.09.2001, Police Post Talab Tillo Jammu received an information from reliable sources that you along with your associates namely 1) Raju Singh S/o Niranjan Singh R/o Gole Puli (Suraj Ice Cream Factory 2)Raman Kumar S/o Parshotam Kumar R/o H. No. 262 Gali No. 06, Talab Tillo, Jammu 3) Arun Kumar Sittu S/o Vaishno Dass R/o H. No. 141 Gali Malhotrian, City Jammu along with other associates fired upon Raman Kumar @ Raju Pandit by Pistol with the criminal intention to kill him in the shop of Banarsi Dass and sons at Talab Tillo Jammu and inflicted serious injuries upon him and later on during medical treatment Raman Kumar @ Raju Pandit succumbed to injuries. During the course of investigation that you were arrested along with your associates on this FIR No. 152/2001 u/s 302/ 451/ 148/34 RPC, 3/25, 4/25 Arms Act stand registered against you at P/S Nowabad (copy of the Fir is enclosed). Whereas, on 17.04.2010 Sub Inspector Ravi Singh Parihar, the then I/c Police Post Talab Tillo, Jammu with other nafri while on patrolling duty at Patel Nagar, Talab Tillo, Jammu at about 5.00 PM/you on seeing police party, run away from the spot and you have been chased/arrested by the Police Party at Patel Nagar to Talab Tillo, Jammu. During your personal search a "kirch" was recovered from your possession. During your personal search a "kirch" was recovered from your possession. On this FIR No. 79/2010 u/s 4/25 Arms Act P/S stands registered at P/S Nawabad Jammu. (copy of the FIR is enclosed). Whereas on 12.02.2012 an application received at P/S Gandhi Nagar, Jammu from Vikramjeet Singh S/o Late Raj Dev Singh R/o H. No. 38 C/C Green Belt Park, Gandhi Nagar Jammu duty endorsed by the Hon’ble Court of CJM Jammu u/s 156 (3) Cr. P. C. for registration of case against you and Ravinder Kumar Gupta @ Gola Shah S/o Sh. Suraj Parkash Gupta R/o 43/7 Greater Kailash, Jammu under Sections 120-B/341/452/ 504/506/464/469/471 RPC, 3/25 Arms Act. The complainant stated that he along with Gurvinder Singh S/o Dalip Sigh purchased a piece of land measuring 3 kanals under Khasra No. 645, Khewat No. 19 and Khwat No. 429 situated at Chouwadi Tehsil and District Jammu, from one Mohd. Sharif S/o Sain R/o Madoh Tehsil and District Jammu vide sale deed dated 30-.05.2000 and the same was duly registered by the Sub Registrar Jammu on 31st May, 2000 and are in possession of land and constructed plinth and boundary wall. On 09.02.2012 the you along with your other associates after making preparation to assault the complainant, armed with country made Pistol, forcibly and illegally trespassed in the residential house of the complainant at Gandhi Nagar Jammu, abused him, used filthy language and aimed Pistol on the head of the complainant and threatened him. On this case FIR No. 42/2012 u/s 120 FIR No. 42/ 2012 u/s 120- B/341/353/452/ 504/506/464/469/471 RPC, 4/25 Arms Act stands registered against you at P/S Gandhi Nagar, Jammu P/S Gandhi Nagar, Jammu. (copy of the FIR enclosed). Whereas, on 22.03.2012, Sub-inspector, Anil Kumar of P/S Gandhi Nagar, Jammu along with Nafri while on patrolling/checking duty at Preet Nagar Road, Jammu at about 10 AM checked a Swift Car without registration number in which you along with your two associates najely Sushil Sharma S/o @ Vicky S/o Som Dutt R/o Kairen, Kot Bhalwal and 2) Sushil Kumar @ Sonu S/o Soba Ram R/o Jawahar Nagar New Plot, Jammu were seated in suspicious condition. During search, one "Dah" (Toka) was recovered from your possession, one 'Dah" (Toka) also recovered from the possession of Sushil Kumar @ Vicky and one Toka' from the possession of Sushil Kumar @ Sonu. During search, one "Dah" (Toka) was recovered from your possession, one 'Dah" (Toka) also recovered from the possession of Sushil Kumar @ Vicky and one Toka' from the possession of Sushil Kumar @ Sonu. On this FIR No. 80 / 2012 u/s 4/25 Arms Act stands registered against you at P/S Gandhi Nagar, Jammu. (Copy of FIR is enclosed). Whereas, in view of the above mentioned facts considerations as well your activities, it is evident that you are notorious criminal, history sheeter are kept under strict surveillance. Despite all this, you did not stop your illegal activities and committed reckless acts of crime and you have close association with the other criminals whose remaining at large will be prejudicial to the maintenance of Public Order. It is also evident that the cases registered against you under substantive section of law are not going to deter you from indulging in such activities. Therefore, your remaining at large is highly detrimental and prejudicial to maintenance of Public Order. As such, in order to deter you from indulging in such activities which are highly prejudicial to maintenance of Public Order, you Varinder Kumar Gupta @ Kaka Chichdi S/o Banarsi Dass R/o H. No. 41-F Gali No. 06 Talab Tillo, Jammu, are hereby ordered to be detained under section 8(1) of J&K Public Safety Act, 1978." 10. The contention of the learned counsel for the petitioner that relevant material has been withheld from the detaining authority, is of no consequence as detaining authority appears to have relied upon the incidents which are taken note in this order. A close look at the grounds of detention would, in all circumstances, lead a reasonable person to the conclusion that these activities are of such a nature, which would have an effect on the public order. The reference made to the paragraph 22 and 26 in K. K. L. Saravana Babu's case, in the facts of this case, would not have an adverse impact on the detention order passed by the District Magistrate. Reference made to paragraph 26 in the said judgment is clarified in paragraph 27 of the same judgment. In this case, bail was already granted to the petitioner. Reference made to paragraph 26 in the said judgment is clarified in paragraph 27 of the same judgment. In this case, bail was already granted to the petitioner. The detaining authority after taking note of that fact and in view of the circumstances appearing in this case, came to the conclusion that petitioner's remaining at large will have an adverse impact on the public order. The other judgments referred to at the bar have clarified the position in Alka Subash Gadia's Case. 11. The detaining authority, it appears, has relied upon more on subsequent events and less on earlier allegations. The relevant material was, thus, before detaining authority, who considered the material and passed detention order. 12. For the above stated reasons, this petition is held to be merit-less and is accordingly dismissed along with connected CMA(s). Interim direction shall stand vacated.