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2023 DIGILAW 127 (JK)

Adil Gafoor v. UT of J&K

2023-03-31

PUNEET GUPTA

body2023
JUDGMENT : Puneet Gupta, J. 1. The petitioner-Adil Gafoor has challenged his detention order bearing No. 82/DM/DODA/PSA/2022, dated 07.07.2022 and detention notice bearing No. 90-96/DM/DODA/PSA/2022, dated 07.07.2022, issued by the District Magistrate Doda, under Jammu & Kashmir Public Safety Act, 1978. The detention order was passed as the petitioner was stated to be acting in a manner prejudicial to the maintenance of public order in Doda District as well as Bhaderwah in particular. As per the detention order, four FIRs stand registered with the Police Station, Bhaderwah. The first FIR was registered in the year 2016, second one in 2019 and the other two FIRs in the year 2022. 2. It is submitted in the petition that the Respondent No. 1 has passed the detention order without application of mind; that earlier also the detention order dated 29.06.2022 was issued on the same grounds and same draft dossier which was also challenged by the petitioner as WP (Crl) No. 28/2022; that the petitioner was bailed out in FIR No. 94/2022 on 29.06.2022 and thereafter was detained on the same date because of detention order dated 29.06.2022 which was withdrawn later on by the respondent; that the petitioner was not supplied full material and also not explained the grounds of detention; that the detention order is vague and finally it is submitted that the detention order has not been approved by the advisory board. 3. The counter to the petition has been filed by the respondent No. 2. The rejoinder to the counter has also been filed. In the counter, it is submitted that the earlier detention order dated 29.06.2022 was having some technical defect and, therefore, the same was not approved by the Home Department. The detention of the petitioner is justified on the ground of the activities as mentioned in the detention order. The detention order in question has been approved by the Home Department. 4. In rejoinder the petitioner has submitted that the respondents have taken contradictory stand in the objections filed in two writ petitions qua the detention order passed earlier in June 2022. In the counter filed to the present petition it is submitted that the detention order dated 29.06.2022 was not approved because of certain deficiencies. However, in the objections filed in the WP (Crl) No. 28/2022, it was submitted that no detention order was passed by the authorities. 5. In the counter filed to the present petition it is submitted that the detention order dated 29.06.2022 was not approved because of certain deficiencies. However, in the objections filed in the WP (Crl) No. 28/2022, it was submitted that no detention order was passed by the authorities. 5. The record has also been produced by the learned Government Advocate. 6. The very purpose of preventive detention order is to prevent the person from committing such illegal activities in future which are likely to be prejudicial and disturb the public order or security of the State and not to punish. The subtle difference between the preventive detention and prosecution is aptly described in the following observations of the Apex Court in Haradhan Sana's case reported in (1975) 3 SCC 198 : “32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention, may be made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.” 7. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu.” 7. The record reveals that the Home Department has confirmed the detention order vide Government Order No. Home/PB-V/1962 of 2022, dated 18.08.2022 for a period of three months and that has been extended thereafter also for a further period of three months vide order dated 06.10.2022 and order of 18.8.2022 also reveals that the detention case of the petitioner was referred to the advisory board and the advisory board vide its opinion dated 04.08.2022 has found sufficient cause for detention of the petitioner. The record also reveals that the detention order along with grounds was provided to the petitioner on 07.07.2022 in Central Jail, Kot Bhalwal. The grounds of detention were read over to the petitioner in English and explained in Urdu/Kashmiri language which he understood fully. The signatures of the petitioner are also on the execution report. The petitioner has been handed over 32 leaves including 20 leaves of FIR and statement of witnesses etc. The petitioner has also been informed that he can make representation to the Government as well as the detaining authority. The court need not disbelieve what has been conveyed or given to the petitioner through documents placed on record. 8. The record also reveals and as submitted by the petitioner that earlier also the detention order bearing No. 45/DM/DODA/PSA/2022, dated 29.06.2022 was passed against the petitioner. The same was however not approved by the Home Department as submitted in the reply filed by the respondent to the present petition. It is also evident from the record that the grounds taken in both the detention orders are more or less the same. Four FIRs are mentioned in both the detention orders which for all practical purposes became the basis for forwarding the case of the petitioner by the Senior Superintendent of Police to the concerned District Magistrate and also passing of detention orders. 9. Four FIRs are mentioned in both the detention orders which for all practical purposes became the basis for forwarding the case of the petitioner by the Senior Superintendent of Police to the concerned District Magistrate and also passing of detention orders. 9. The main ground taken by the learned counsel for the petitioner is that the successive orders of preventive detention are uncalled for more so when the earlier one was still in operation and the grounds of detention were virtually the same in the detention order under challenge. 10. Learned Government Advocate appearing for the respondents has, however, submitted that as the first detention order was not approved by the Government, therefore, the same has no sanctity so as to attack the second detention order. All the formalities which were required to be fulfilled in terms of the Public Safety Act have been completed in the present case. 11. In 1989 Legal Eagle 161 titled Chhagan Bhagwan Kahar v. N.L. Kalna the Hon'ble Apex Court dealt with the aspect of successive detention orders and held that the second detention order on the same facts as mentioned in the first one is not as per law and is impermissible. 12. The court is of the view that on the aforesaid ground itself the detention order is required to be quashed. The respondents have passed the order of detention in question detrimental to the rights of the petitioner. The petitioner has suffered the detention twice though the earlier one may have not been approved by the competent authority later on. It cannot be disputed that the basis of both the detention orders is similar. The petitioner was bailed out in a criminal case and on the same day order of detention was passed which was not approved by the Home Department and the petitioner had to suffer on account of such detention order. The authority cannot pass successive order of detention on same facts and if that is to happen it will be unending suffering for the detenue. 13. The petitioner contends that all relevant material has not been given to the petitioner which has deprived the petitioner to make effective representation. The material has been handed over to the petitioner while executing the warrant of execution and the material supplied includes copies of FIRs and statements of witnesses recorded containing 20 leaves. 13. The petitioner contends that all relevant material has not been given to the petitioner which has deprived the petitioner to make effective representation. The material has been handed over to the petitioner while executing the warrant of execution and the material supplied includes copies of FIRs and statements of witnesses recorded containing 20 leaves. However, the court is not convinced that whole record concerning the FIRs registered against the petitioner, as mentioned in the execution of order, were handed over to the petitioner at the time of execution of warrant. Except for two-three statements of the witnesses and the copies of FIR pertaining to the cases nothing more stands supplied to the petitioner. It is trite proposition of law that all the necessary material is required to be given to the petitioner so that he could make effective representation against his detention before the concerned authorities effectively. The court need not consume the paper by citing the authorities on the point under discussion. As the petitioner has not been supplied all necessary relevant material the detention order is bad on the aforesaid ground also. 14. Keeping in view the discussion made above, the detention order and the notice of detention impugned in the writ petition are quashed. 15. The petitioner shall be released forthwith unless required in any other case. 16. Record submitted by the learned Government Advocate be handed over to him.