Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 783 (JK)

Vipan Kumar v. State of J&K

2017-09-01

JANAK RAJ KOTWAL

body2017
JUDGMENT : 1. This is a Habeas Corpus petition challenging the detention order No. 06/PSA of 2016 dated 10.09.2016 passed by the District Magistrate, Samba, herein respondent No. 2, under section 8 of the Jammu and Kashmir Public Safety Act, 1978 (for short, the Act) directing preventive detention of the petitioner. The impugned order in its substance reads: “Whereas, I, Sheetal Nanda, District Magistrate, Samba am satisfied that Vipan Kumar @ Jhony S/o Sat Paul R/o Ward No. 06, Bari-Brahmana, Tehsil Bari-Brahmana, District Samba is required to be detained immediately in order to prevent him from acting in any manner prejudicial to the maintenance of the public order is required to be detained immediately. Now, therefore, in exercise of powers conferred under section 8(1)(a) of the J&K Public Safety Act, 1978. It is hereby directed that Vipan Kumar @ Jhony S/o Sat Paul R/o Ward No. 06, Bari-Brahmana, Tehsil Bari-Brahmana District Samba be detained at Sub Jail, Hiranagar.” 2. The record produced on behalf of the respondents reveals that intimation in terms of section 13(1) of the Act was sent to the detenue by the detaining authority vide No. DMS/PSA/16-17/697-99 dated 10.09.2016, whereby he was informed that he can make a representation to the Government against the order of detention. A similar intimation was sent to the father of the detenue, Sat Paul on 10.09.2016. The detention order was executed by Yash Pal Singh Jamwal, SHO, Police Station, Bari Brahmana by taking the petitioner (detenue) in custody on 17.09.2016 and handing him over to the authorities of Sub-Jail, Hiranagar for his lodgment. The Government approved the detention order vide order No. HOME/PB-V/1134 of 2016 dated 21.09.2016. On receipt of the opinion from the State Advisory Board, the Government vide Government Order No. HOME/PB-V/1833 of 2016 dated 27.10.2016 confirmed the detention order dated 10.09.2016 for initial period of three months. The period of detention was further extended for a period of three months each vide order dated 15.12.2016 and order dated 14.03.2017. Lastly the period of detention has been executed for three months vide order dated 14.06.2017. 3. The grounds of detention seem to have been formulated by the detaining authority in the shape of another detailed order, being order No. 6/PSA of 2016 dated 10.09.2016, on the basis of the dossier furnished by the Senior Superintendent of Police, Samba, herein respondent No.3. 3. The grounds of detention seem to have been formulated by the detaining authority in the shape of another detailed order, being order No. 6/PSA of 2016 dated 10.09.2016, on the basis of the dossier furnished by the Senior Superintendent of Police, Samba, herein respondent No.3. The grounds of detention so formulated are that the petitioner, aged 28/29 years, is a habitual and most dreaded/notorious criminal/drug peddler. He started criminal activities in the year 2008, graph whereof rose continuously and he attained huge notoriety in a brief period. His sole motive was to create terror among the peaceful citizens of the area and to build his own criminal gangs. He is a person of criminal bent of mind and was involved in heinous crimes, which were not only detrimental to the maintenance of law and order and public peace but also a serious threat to the security of the State. 4. The grounds of detention contain the detail of the criminal cases registered at Police Station, Bari Brahmana, in which the petitioner was involved. These are: 1. FIR No.92/2008, under Sections 341, 323 RPC. 2. FIR No. 144/2009 under Section 342,323 RPC and 4/25 Arms Act. 3. FIR No. 57/2012 under Sections 451, 323 RPC, 4/25 Arms Act. 4. FIR No. 20/2014 under Sections 307/34 RPC. 5. FIR No. 47/2014 under Sections 8/21/22 NDPS Act and 3/25 Arms Act. 6. FIR No. 73/2016 under Sections 6/20/22 NDPS Act. 7. Proceedings under Section 110 Cr. P. C. 5. The detaining authority, therefore, was of the opinion that the petitioner has become a potential threat to the public order and is highly prejudicial to the security of the State. The routine legal proceedings have become insufficient and ineffective to check his activities. The detaining authority thus felt the necessity of issuing the detention order to prevent the petitioner from spreading, expanding and continuing his criminal activities and for restraining him from acting in any manner prejudicial and detrimental to maintenance of peace, tranquility and public order. 6. The preventive detention of the petitioner is challenged, firstly, rather, primarily on the ground that the detention order has been passed without application of mind by the detaining authority. 6. The preventive detention of the petitioner is challenged, firstly, rather, primarily on the ground that the detention order has been passed without application of mind by the detaining authority. It is contended that the basis of the impugned detention of the petitioner is his involvement in the various FIRs but the detaining authority has not taken into account the acquittal of the petitioner in those FIRs. It is contended also that the FIRs relied upon by the detaining authority had been registered in the years 2008, 2012 and 2014, which have no live nexus with the grounds of detention formulated in the year 2016. The petitioner was earlier detained by virtue of a similar order dated 30.04.2014 against which the petitioner had filed Habeas Corpus Petition HC(W) No. 21/2014, which, however, was withdrawn as the detaining authority had withdrawn the detention order prematurely. The detention order impugned in this writ petition has been passed on the basis of the same material on which the detention order was passed in the year 2014. 7. Learned counsel for the petitioner submitted that the non-application of mind by the detaining authority is writ large from the grounds of detention formulated in order dated 10.09.2016, which is nothing more than the reiteration of the contents of the dossier furnished by respondent No.3. Learned counsel also sought to point out that the alleged grounds of detention are the same, on the basis whereof earlier order of detention was passed in the year 2014 and argued that subsequent order of detention on the same grounds is illegal and violative of the fundamental right of personal liberty of the petitioner. Learned counsel relied upon Ghotka Hembram v. State of West Bengal, 1974 (3) SCC 401 . 8. In the objections filed on behalf of the respondents, it is not denied that the petitioner was earlier detained vide order dated 30.04.2014 and the detention was withdrawn during pendency of the Habeas Corpus petition filed by the petitioner against that order. It is denied not also that, but for one, the FIRs relied upon by the detaining authority in passing the impugned order are the same, which were earlier relied upon while passing the detention order in the year 2014. Learned Deputy Advocate General, Mr. It is denied not also that, but for one, the FIRs relied upon by the detaining authority in passing the impugned order are the same, which were earlier relied upon while passing the detention order in the year 2014. Learned Deputy Advocate General, Mr. Ehsan Mirza, however, submitted that after cancellation of the earlier order of detention the petitioner got involved in another case under NDPS Ac, which was FIR being FIR No. 73/2016 of Police Station, Bari Brahmana. Learned Deputy Advocate General submitted further that due to the petitioner's repeated involvement in commission of heinous offences his preventive detention became imperative for maintaining the public order in the area. Mr. Mirza submitted also that the subjective satisfaction arrived at by the detaining authority cannot be tested by this court. 9. It may be stated precisely that preventive detention of a person curtails his fundamental right of personal liberty and individual freedom. The order of preventive detention, therefore, should be passed only in a situation where the detaining authority on the basis of material provided to him arrives at a well considered satisfaction and a just conclusion that necessity of preventive detention of the person is urgent and unavoidable for security of the State or maintenance of the public order. Preventive detention cannot be used as a measure only for preventing a person from commission of offences as ordinary law is sufficient to deal with such a person. Supreme Court in Union of India v. Ranu Bhandari, (2008) 17 SCC 348 has reiterated the principle that although the State is empowered to issue order of preventive detention, such power should be exercised by the detaining authority on consideration of relevant material, both against and in favour of the individual concerned, to arrive at a just conclusion that his detention was necessary in the interest of the public and to prevent him from continuing to indulge in activities which are against the public interest and the interest of the State. It is very well to say that the subjective satisfaction arrived at by the detaining authority cannot be tested by this Court but it is to be borne in mind that the grounds of detention must disclose objective application of mind by the detaining authority. 10. The case on hand is a classic example of total non-application of mind by the detaining authority. 10. The case on hand is a classic example of total non-application of mind by the detaining authority. The detaining authority is required to formulate grounds of detention necessitating the passing of detention order of a person and the grounds so formulated must reflect independent application of mind by the detaining authority for arriving at a just conclusion. It is noticed that the grounds of detention formulated by the detaining authority in the order No. 06/PSA of 2016 dated 10.09.2016, but for its opening paragraph, which refers to the dossier furnished by the respondent No.3 and the last paragraph, which speaks of the issuance of the order of detention, is almost verbatim reiteration of the dossier. The only difference between the two is that in every paragraph of the dossier, word ‘whereas’ has been prefixed in the formulation of the grounds of detention. Even, what may be called as, the satisfaction recorded by the detaining authority is hardly different than the recommendation made by respondent No.3. 11. It is noticed that the dossier furnished by the respondent No. 3 did not refer to the earlier order of detention passed in the year 2014. The impugned order, however, shows that the detaining authority was aware in this regard. Record produced on behalf of the respondents would show that before passing the impugned order of detention, the office of the detaining authority had obtained information about the outcome of all the FIRs which were mentioned in the dossier. The information provided by the respondent No.3 vide his letter dated 08.07.2016 was that the cases arising in those FIRs were sub judice in the court. Admittedly, but for FIR No. 73/2016, all other FIRs, which have been made the basis of the impugned order of detention, were the basis of the detention order issued in the year 2014. 12. What is important to note is that neither the objections filed on behalf of the respondent explain nor the record reveals as to what were the reasons behind cancelling/withdrawing the order of detention passed in the year 2014 and passing fresh order after a gap of about two years on almost the same grounds. 12. What is important to note is that neither the objections filed on behalf of the respondent explain nor the record reveals as to what were the reasons behind cancelling/withdrawing the order of detention passed in the year 2014 and passing fresh order after a gap of about two years on almost the same grounds. What can be said without any fear of doubt is that the detaining authority had not applied his mind while issuing the impugned order of detention and has taken lightly and virtually ignored the factum of the passing of the earlier order and its cancellation/withdrawal. One FIR registered in the year 2016 evidently was not the sole ground nor it could have been, for furnishing fresh dossier or passing the fresh detention order. The dossier as well as detention order, therefore, were based mainly on the same grounds (FIRs) which were earlier made basis of detention by virtue of detention order issued in the year 2014. The impugned order of detention, therefore, suffers from total non-application of mind in arriving at the so called satisfaction for ordering preventive detention order. The order sans objective consideration for arriving at a subjective satisfaction necessitating preventive detention of the petitioner. An order passed without application of mind by the detaining authority is illegal and invalid ab inito and cannot sustain. The other grounds of detention need not be discussed. 13. The impugned detention order is, therefore, quashed. The petitioner/detenue be set at liberty, if not required in any other case. 14. Registry to return the record to the learned counsel for the respondents. 15. Disposed of.