Research › Search › Judgment

J&K High Court · body

2018 DIGILAW 222 (JK)

Dilbagh Singh v. State of J&K

2018-04-12

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. Impugned in this petition is order No. 05 of PSA 2017 dated 07.06.2017 passed by the District Magistrate, Jammu, herein respondent No. 2, whereby the petitioner, Dilbag Singh S/O Janak Singh R/O W. No. 4, Simbal Camp, Jammu, has been taken in preventive detention under section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act) in order to deter him from indulging in activities prejudicial to the maintenance of public order. 2. Heard learned counsel for the parties. I have perused the record. 3. One of the grounds of challenge to the impugned order is that the petitioner has been illegally detained as he had earlier been similarly detained by virtue of Order No. 09/PSA of 2016 dated 15.07.2016, which was quashed by this Court vide judgment dated 23.03.2017 in HCP No. 04/2017 filed by the petitioner. 4. Learned counsel for the petitioner submitted that the impugned order of detention has been passed on the grounds, which are exactly the same on which earlier order of detention dated 15.07.2016 was passed, which was quashed by this Court vide judgment dated 23.03.2017. Learned counsel sought to point out that the impugned order of detention has been passed by the same detaining authority who passed the earlier order dated 15.7.2016 on the same grounds in total disregard to the said earlier order and the judgment of this and is, therefore, illegal, also for the reason that the same suffers from utter non application of mind by the detaining authority. 5. Copies of the impugned order of detention dated 07.06.2017 and the earlier order of detention dated 15.07.2016 have been produced on behalf of the petitioner annexure to this petition. Both these orders have been passed by the District Magistrate, Jammu, herein respondent No. 2. Respondents in their reply to this petition, which is supported by affidavit of respondent No. 2, while not denying the passing of the earlier order of detention and the judgment of this Court, however, surprisingly have not addressed and explained the factum of earlier detention of the petitioner nor have justified the impugned detention in that context. Relevant paragraphs of the petition in this behalf are paragraphs 6 and 7, which have been replied by stating that the same do not pertain to the answering respondent, that is, respondent No. 2, which is not understandable. 6. Relevant paragraphs of the petition in this behalf are paragraphs 6 and 7, which have been replied by stating that the same do not pertain to the answering respondent, that is, respondent No. 2, which is not understandable. 6. It is, thus, indisputable that the petitioner was earlier taken into preventive detention by virtue of order No. 09/PSA of 2016 dated 15.07.2016 passed by respondent No. 2. in order to “deter him from indulging in such activities which are prejudicial to the maintenance of public order.” This order was challenged by the petitioner in HCP No. 04/2017 and was quashed by this Court vide judgment dated 23.03.2017, copy whereof is annexed to this petition. By the same judgment, respondents were directed to set the petitioner at liberty. It was held by this Court: “Thus from the above backdrop, the mandatory provisions of law have not been complied with. Respondents rejected petitioner’s representation. However, they did not convey information to petitioner as to decision taken by respondents rejecting his representation and they, in result, kept petitioner waiting for the result of representation. This unexplained and inordinate delay in communication also vitiates continued detention. Regard being had to Nihar (Nihal Kasai) v. Sukhpal Singh in Khudi Ram Das v. State of West Bangal, the Supreme Court held that one of the basic requirements of clause (5) of Article 22 is that the authority making order of detention must afford detenu earliest opportunity of making representation against order of detention and this requirement would become illusory unless there is a corresponding obligation on the authority to consideration the representation of detenu as early as possible and in the event representation is not dealt with as early as possible or as expeditiously as possible, there would be contravention of Section 13 of the J & K Public Safety Act, which would result in the invalidation of order of detention.” 7. As said above, it is not understandable as to why respondents in their reply to this petition have opted not to meet with this aspect properly and have avoid reply by taking incorrect plea that the same does not pertain to respondent No. 2, notwithstanding that the said earlier order of detention was passed by respondent No. 2 too. 8. As said above, it is not understandable as to why respondents in their reply to this petition have opted not to meet with this aspect properly and have avoid reply by taking incorrect plea that the same does not pertain to respondent No. 2, notwithstanding that the said earlier order of detention was passed by respondent No. 2 too. 8. The earlier order of detention dated 15.07.2016 and the impugned order dated 07.06.2017 contain detailed account of the grounds formulated by the detaining authority for passing the said orders. To my surprise, it is noticed that the two orders by and large are verbatim the same and refer to the same FIRs in which the petitioner was involved before the passing the said orders. I am reproduce these two orders to demonstrate as to how one is almost a carbon copy of the other: ORDER No. 09/PSA of 2016 Dated 15.07.2016 1. Whereas, it has been brought to my notice by the Senior Superintendent of Police, Jammu vide his Dossier No. CRB/2016/36395/DPOJ dated 12.07.2016 (copy enclosed), mentioning therein that the subject is notorious/hardcore habitual criminal, a desperate character and has no respect for the law of the land; and 2. Whereas, the subject has created terror/fear among the locals and disturbed the tempo of the life of the community as a resulting the general public is feeling quite insecure and the subject is continuously indulging in criminal activities and has created terror among the peace loving people of the area. The subject has become a chronic criminal and has created fear of insecurity; and 3. Whereas, the activities of the subject are considered highly prejudicial to the maintenance of public order as large number of criminal cases have been registered against him. The detail of criminal cases registered against the subject in different Police stations is as under:- S. No. Details of FIRs with sections of law. 1. Case FIR No. 98/2009 u/s 452/323/34 RPC, 4/25 Miran Sahib 2. Case FIR No. 97/2012 u/s 307/324/201/34 RPC, 4/25 A. Act P/S Bahu Fort 3. Case FIR No. 43/2014 u/s 323/341 RPC P/S Miran Sahib, Jammu 4. Case FIR No. 73/2015 u/s 307/341/147/148 RPC, 4/25 A. Act P/S Miran Sahib 5. Case FIR No. 80/2015 u/s 307/147/148 RPC, 3/254/25 A. Act P/S Miran Sahib 6. FIR No. 07/2016 u/s 307/341/323/34 RPC, 3/25 A. Act P/`S Miran Sahib 7. Case FIR No. 43/2014 u/s 323/341 RPC P/S Miran Sahib, Jammu 4. Case FIR No. 73/2015 u/s 307/341/147/148 RPC, 4/25 A. Act P/S Miran Sahib 5. Case FIR No. 80/2015 u/s 307/147/148 RPC, 3/254/25 A. Act P/S Miran Sahib 6. FIR No. 07/2016 u/s 307/341/323/34 RPC, 3/25 A. Act P/`S Miran Sahib 7. FIR No. 28/2016 u/s 458/170/449/504/506/34 RPC, 3/15, 4/25 A. Act P/S Miran Sahib, Jammu 8. Case FIR No. 54/2016 us 307/341/323/34 RPC, 3/25, 4/25 A. Act P/S Miran Sahib Jammu 9. Case FIR No. 123/2016 u/s 8/21 NDPS Act P/S Bahu Fort Jammu 4. Whereas, the subject has formed the criminal gang and is making all efforts to expand his criminal gang and carry his nefarious criminal/unlawful activities; and 5. Whereas, the subject is addicted to crime and commits crimes of brutal nature like attempt to murder, intercepting, drug paddling, stabbing and keeping arms illegally etc. The activities of the subject are highly prejudicial to the security of the society/public peace/tranquility and public order; and 6. Whereas, the substantive law is not sufficient to deter the subject and curb his criminal activities. As such, in order to deter him from indulging in such activities which are highly prejudicial to the maintenance of public order, Dilbag Singh S/O Janak Singh R/O W. No. 4 Simbal Camp Jammu A/P Makhanpur Gujran Miran Sahib Tehsil R.S. Pura Jammu is hereby ordered to be detained under sec. 8(1)(a) of the J&K Public Safety Act 1978 with immediate effect.” ORDER No. 05/PSA of 2017 Dated 07.06.2017 1. Whereas, it has been brought to my notice by the Senior Superintendent of Police, Jammu vide his Dossier No. CRB/2017/27245/DPOJ dated 30.05.2017 (copy enclosed), mentioning therein that the subject is notorious/hardcore habitual criminal, a desperate character and has no respect for the law of the land; and 2. Whereas, the subject has created terror/fear among the locals and has disturbed the tempo of the life of the community as a resulting the general public is feeling quite insecure and the subject has also created terror among the peace loving people of the area. The subject has become a chronic criminal and has created fear of insecurity; and 3. Whereas, the detail of criminal cases registered against the subject in different Police stations is as under:- S. No. Details of FIRs with sections of law. 1. The subject has become a chronic criminal and has created fear of insecurity; and 3. Whereas, the detail of criminal cases registered against the subject in different Police stations is as under:- S. No. Details of FIRs with sections of law. 1. Case FIR No. 98/2009 u/s 452/323/34 RPC, 4/25 Miran Sahib 2. Case FIR No. 97/2012 u/s 307/324/201/34 RPC, 4/25 A. Act P/S Bahu Fort 3. Case FIR No. 43/2014 u/s 323/341 RPC P/S Miran Sahib, Jammu 4. Case FIR No. 73/2015 u/s 307/341/147/148 RPC, 4/25 A. Act P/S Miran Sahib 5. Case FIR No. 80/2015 u/s 307/147/148 RPC, 3/254/25 A. Act P/S Miran Sahib 6. FIR No. 07/2016 u/s 307/341/323/34 RPC, 3/25 A. Act P/S Miran Sahib 7. FIR No. 28/2016 u/s 458/170/449/504/506/34 RPC, 3/15, 4/25 A. Act P/S Miran Sahib, Jammu 8. Case FIR No. 54/2016 u/s 307/341/323/34 RPC, 3/25, 4/25 A. Act. P/S Miran Sahib Jammu 9. Case FIR No. 123/2016 u/s 8/21 NDPS Act P/S Bahu 4. Whereas, the subject has formed the criminal gang and is making all efforts to expand his criminal gang and presently the subject is in Police Custody; and 5. Whereas, the subject is addicted to crime and commits crimes of brutal nature like attempt to murder, intercepting, drug paddling, stabbing and keeping arms illegally etc. and 6. Whereas, the activities of the subject are highly prejudicial to the security of the society/public peace/tranquility and public order; and 7. Whereas, the activities of the subject have shaken the confidence of general public in criminal justice system as they feel insecure and frightened, as the subject is habitual criminal and the substantive law is not sufficient to deter him and curb his criminal activities. As such, in order to deter him from indulging in such activities which are highly prejudicial to the maintenance of public order, Dilbag Singh S/O Janak Singh R/O W. No. 4 Simbal Camp Jammu A/P Makhanpur Gujran Miran Sahib Tehsil R. S. Pura Jammu is hereby ordered to be detained under sec. 8(1)(a) of the J&K Public Safety Act 1978 with immediate effect.” 9. 8(1)(a) of the J&K Public Safety Act 1978 with immediate effect.” 9. On plain reading of the two orders of detention passed by the same authority, it can be said without incurring any risk of doubt that the order dated 15.07.2016, which has been quashed by this Court vide judgment dated 23.03.2017, was virtually repeated by the same detaining authority under a new number and date in utter disregard to the earlier order and the judgment of this Court. The passing of the impugned order of detention therefore, not only suffers from total non application of mind by the detaining authority but also from illegality of highest order. Having found that the impugned order is repetition of the order, which has been earlier quashed by this Court, I would hold that the impugned order of detention is illegal, which is liable to be quashed on this score alone without going to the other ground of challenge in the petition. 10. Viewed thus, the impugned order of detention No. 05/PSA of 2017 dated 07.06.2017 is quashed and it is ordered that the petitioner/detenue shall be released provided he is not required in any other case. 11. Record be remitted back to the learned counsel for the respondents. 12. Disposed of.