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2023 DIGILAW 386 (JK)

Akshay Sharma v. U. T. of J&K

2023-08-10

RAJNESH OSWAL

body2023
JUDGMENT : Rajnesh Oswal, J. 1. The petitioner has filed the present petition for quashing the order of detention bearing No. 05/PSA of 2022, dated 03.10.2022 issued by the respondent No. 2, whereby the petitioner has been detained under section 8(1)(a) of Jammu and Kashmir Public Safety Act, 1978 (for short 'the Act'). 2. The petitioner has assailed the order of detention on the following grounds:- (i) That the order of detention has been passed, when the petitioner was already in judicial custody in FIR No. 148/2022, dated 03.09.2022 registered with Police Station, Bishnah and no compelling reasons have been mentioned in the Police dossier, detention order and grounds of detention by the Detaining Authority for detaining the petitioner when he was already in judicial custody. (ii) That the order of detention is the verbatim reproduction of the Police dossier which clearly shows non-application of mind on the part of the Detaining Authority while issuing the order of detention. (iii) That the Detaining Authority has not even taken note of the present status of the false and frivolous FIRs registered against the petitioner which clearly shows that the order of detention has been passed in a mechanical manner. 3. Respondent No. 2 has filed the response stating therein that the order of detention has been passed after duly considering the dossier, copies of the FIRs and other supporting documents received from respondent No. 3. The respondent No. 2 had denied that the order of detention is the replica of the dossier submitted by respondent No. 3-Senior Superintendent of Police, Samba. It is further stated that the petitioner has created an atmosphere of lawlessness in District Samba as eight FIRs have been registered against him under various sections of the Indian Penal Code in a short span of time from the year 2000-2022. Taking in to consideration the illegal activities of the petitioner, the order of detention was passed. Moreover, the Government of Jammu and Kashmir vide order dated 01.11.2022 has also confirmed the order of detention and further the order of detention has been extended from time to time. Taking in to consideration the illegal activities of the petitioner, the order of detention was passed. Moreover, the Government of Jammu and Kashmir vide order dated 01.11.2022 has also confirmed the order of detention and further the order of detention has been extended from time to time. Respondent No. 2 has further pleaded that since the actions taken against the petitioner under the ordinary law from time to time have not yielded any result and his persistent involvement in the antisocial activities are posing threat to the peace and security of the State as such, the Detaining Authority issued the order of detention on the basis of the record submitted by respondent No. 3. Further as per execution report, the grounds of detention have been provided to the petitioner against proper receipt and same were explained to the petitioner in Hindi, Urdu and Dogri Languages. The petitioner has put his signatures on the receipt of grounds of detention in acknowledgement of the receipt of the same. 4. Mr. Deepak Mahajan, learned counsel for the petitioner vehemently argued that the Detaining Authority has not shown any compelling reasons in the order of detention warranting the issuance of order of detention when the petitioner was already under judicial remand. He further submitted that the grounds of detention are verbatim reproduction of the dossier submitted by respondent No. 3 which clearly shows the non-application of mind on behalf of the respondent No. 2. 5. Per contra, Mr. Vishal Bharti, learned Dy. AG representing respondents vehemently argued that eight FIRs have been registered against the petitioner which clearly shows that the ordinary law has failed to deter the petitioner from indulging in activities prejudicial to the maintenance of public order, therefore, in order to prevent the petitioner from indulging again in such activities, the order of detention was issued. He further submitted that the constitutional as well as procedural requirements were complied with by the Detaining Authority while issuing and executing the order of detention. 6. Heard and perused the record including the detention record produced by the respondents' counsel. 7. The first contention raised by the petitioner is that the grounds of detention are the verbatim reproduction of the dossier submitted by respondent No. 3 to respondent No. 2. 6. Heard and perused the record including the detention record produced by the respondents' counsel. 7. The first contention raised by the petitioner is that the grounds of detention are the verbatim reproduction of the dossier submitted by respondent No. 3 to respondent No. 2. It also revealed that there are not even cosmetic changes made in the order of detention and the grounds of detention are in fact replica of the dossier, which clearly shows the non-application of mind on the part of respondent No. 2. 8. Reliance is placed upon the decision of Apex Court in case titled "Jai Singh v. State of J&K", and the relevant portion is reproduced as under:- "............First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as Village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of....." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the 11 WP(Crl) No. 64/2021 subject is" into "you Jai Singh, S/o Ram Singh, resident of Village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner." 9. Further, in "Rajesh Vashdev Adnani v. State of Maharashtra", the Hon'ble Apex Court quashed the order of detention, as the detention order was the verbatim reproduction of the proposal of the sponsoring authority. On this ground only, the order of detention is required to be quashed. 10. Further, in "Rajesh Vashdev Adnani v. State of Maharashtra", the Hon'ble Apex Court quashed the order of detention, as the detention order was the verbatim reproduction of the proposal of the sponsoring authority. On this ground only, the order of detention is required to be quashed. 10. Further, respondent No. 2 while issuing the order of detention has nowhere shown his awareness in respect of the fact that the petitioner was under judicial remand. The respondents have not bothered to rebut the contention raised by the petitioner in the petition that he was under judicial remand when the order of detention was issued. In fact, the execution of PSA warrant reveals that the custody of the petitioner was taken from Police Station, Samba on 07.10.2022 at about 1530 hours. In yet another execution report of PSA warrant, it is revealed that the custody of the petitioner was taken over from District Jail premises on 06.10.2022. Though both the warrants are contradictory leading to the confusion about the date of execution of warrant but it is evident that the petitioner was already under judicial remand when the order of detention was passed. It appears that the respondent No. 3 did not bring it to the notice of the respondent No. 2 that the petitioner was under judicial remand when respondent No. 3 sponsored the case of the petitioner for detaining the detenue (petitioner) under the Act (supra). There is no denial of the settled position of law that a person involved in a criminal case can be detained under the provisions of preventive detention laws, but there must be compelling circumstances for doing so otherwise the order of detention becomes unsustainable. It was incumbent upon on the part of respondent No. 3 to bring it to the notice of respondent No. 2 about the judicial remand of the petitioner and when the fact of the judicial remand of the petitioner was not brought to the notice of the respondent No. 2, it would vitiate the order of detention. 11. In "Vijay Kumar v. State of J&K", it was held as under:- "If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State. Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail. Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail. But in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made." 12. In view of what has been said and discussed above, this Court is of the considered view that the order of detention bearing No. 05/PSA of 2022, dated 03.10.2022 passed by the respondent No. 2 is not sustainable in the eyes of law and accordingly, the same is quashed. The petitioner be released forthwith, provided he is not required in any other case. 13. Detention record be sent back.