Ashwani Kumar vs Ut Of Jk And Others

Ashwani Kumar through his mother has challenged in the present writ petition the detention order No. PSA/103 dated 06.10.2020 with endorsement no. DMK/JC/2020/2898-2905 dated 07.10.2020, passed by respondent no.2-District Magistrate Kathua, in terms of the provisions of Jammu and Kashmir Public Safety Act, 1978 (for short "Act") on the grounds: that the relevant documents which formed part of the detention order are not provided to the petitioner; that the said respondent has not applied mind independently of what was provided in the dossier by the respondent no. 3 to the respondent no.2; that the petitioner was not communicated the order within the statutory period, therefore, he could not avail the remedy of making representation under the Act; that the communication of the impugned order was addressed to the father of the petitioner who had died in the year 2017 and thus shows non-application of mind by the detaining authority; that the detention order is verbatim of dossier prepared by the respondent no. 3 and there is no mention in the detention order that there is likelihood of petitioner being released on bail when the petitioner was already in police custody from 29th September, 2020 at the time the order impugned came to be passed by the detaining authority.

The counter affidavit has been filed on behalf of respondent no. 2 wherein contentions raised by the petitioner have been negated. It is submitted that the detaining authority has passed the order of detention after deriving subjective satisfaction in the matter and after going through the material available with the detaining authority. The warrant in compliance to the detention order was executed on 10th October, 2020 and the relevant documents were handed over to the petitioner against the proper receipt. It is further submitted that the petitioner was made aware of the detention order in the language he understands and the petitioner subscribed his signature on the execution order. The Advisory Board has also confirmed order of detention and the government has later on confirmed the order of detention issued against the petitioner. The respondent having complied with all the statutory requirements while passing order of detention, the petitioner has no case to agitate against the detention order. The respondents seek dismissal of the writ petition.

Heard learned counsel for the both sides and perused the file. The record of the case has not been produced by the respondents.

The power of preventive detention is a precautionary measure and different from punitive detention. The difference between the two proceedings aptly observed by the Apex Court in Haradhan Saha case reported in (1975) 3 SCC 198 is as under:

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.

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."

The subjective satisfaction of the detaining authority in respect of detention order is subject to review of the Court and this is very much evident from the observations of the Hon'ble Supreme Court in case titled Union of India vs. Dimple Happy Dhakad (Appeal No. 1064/2019 decided on 18.7.2019).

On the touchstone of the above proposition of law also, the present case is also required to be scrutinized and dealt with by the Court.

The order of detention dated 06.10.2020 has been executed in the Central Jail Jammu, Kot Bhalwal on 10.10.2020. The execution report is annexed with the counter filed by the respondent no. 2. The execution report speaks of the petitioner having been read-over and explained the contents of detention warrant and grounds of detention in Urdu/Hindi/Dogri language. The petitioner has also signed the execution report and further that twenty-seven (27) leaves have been handed over to the petitioner and they include copy of the detention warrant, grounds of detention, dossier and copies of FIR. The petitioner is also made aware of the fact that he can make representation to the Government against his detention order, if he so desires. The court does not find any reason not to believe the execution report dated 10.10.2020 nor the petitioner has been able to make out that what has been stated in the execution warrant is in fact not the case. If the petitioner has not availed the right available with him of the representation to the government or the Advisory Board the petitioner cannot raise any grouse in respect of the same in the present petition. The information was sent to the father of the petitioner regarding the detention and right to make representation as per the provisions of the Act. Though the father had died much before the information was sent. The court is of the view that this factor cannot be the ground to quash the detention order when the petitioner was in fact informed of the detention order and right to make representation under the Act.

Annexure- R-1 with the counter affidavit is the Government Order bearing No. Home/PB-6/1773 of 2020 dated 13.11.2020, issued by the Principal Secretary to Government, Home Department. As per this order, the detention order was approved by the Government vide Order No. Home/PB-5/1700 of 2020 dated 12.10.2020 and further the Advisory Board vide dated 28.10.2020 found sufficient cause for detention of the detenu. The Order dated 13.11.2020 confirms the order of detention passed vide dated 06.10.2020 by District Magistrate, Kathua and petitioner has been detained initially for a period of three months and lodged in Central Jail, Jammu, Kot Bhalwal. The record pertaining to the order passed by the Advisory Board or earlier approval of the detention order by the Government is not placed before the court but the court does not find any reason not to rely on the recitals contained to that effect in Government Order of 13.11.2020.

One of the grounds raised in the petition is that the respondent no. 2 has not applied the mind of his own as order of detention has been passed only on the basis of the dossier provided by the Senior Superintendent of Police, Kathua. The respondents indeed deny this assertion emphatically.

The grounds of detention are only replica of the dossier provided to the respondent no.2 by the respondent no. 3 and nothing more. The wording of the dossier and the grounds of detention is the same. The court is at loss to know the satisfaction, if any, recorded of his own by the respondent no.2 in the detention order and not just subscribing to the contents of the dossier prepared by the respondent no. 3. The non-application of mind is writ large from the order passed in the case. This aspect of the matter also reflects the routine manner in which the detention orders are passed.

The Apex Court in AIR 1985 SC 764 titled Jai Singh and Others vs. State of Jammu and Kashmir quashed the detention order on the ground that the detention order is just reproduction of the dossier and nothing more.

The perusal of the dossier reveals that the petitioner is stated to be involved in cases related to NDPS/Excise Act and four FIRs stand registered against him and challan also stand filed in the court of law in two of FIRs bearing No. 84/2016 and Fir No. 452/2018, whereas, investigations are on in FIR no. 138/2020 and FIR no. 305/2020. The activities of the petitioner have been found to be prejudicial and detrimental to the maintenance of public order. The dossier also reveals that the petitioner is in police custody in FIR no. 305/2020 under 48 (A) of Excise Act registered with police station Kathua and likelihood of the petitioner getting bail from the court at any time in the said FIR. It is pertinent to point out that it is not mentioned in the grounds of detention that the petitioner has applied for bail in the said FIR and may be bailed out in near future. The authority cannot anticipate that the petitioner will apply for the bail and will be held entitled to bail by the Court. In the absence of any record on the file that the petitioner has applied for bail before court of law the ground of detention of the likelihood of the petitioner being bailed out cannot sustain.

In the light of the discussion made above the order of detention impugned in the present petition is quashed. The petitioner be released forthwith, if not required in any other case.

This petition is disposed of along with connected CrlM(s).