Hoshiar Singh vs Union Territory Of J&K And Others

Puneet Gupta, J

The petitioner has challenged detention order No. 02 of 2021 dated 23.01.2021 passed by the respondent No.2 under provisions of J&K Public

Safety Act (hereinafter called Act) on the ground that the order was served upon the petitioner when he was already in police custody under

substantive offences; that the order impugned does not reflect the factual aspects of the case as the petitioner had either been acquitted or granted

bail in some of the FIR mentioned in the order; that the petitioner was not supplied the relevant material nor was he made to understand the

documents in the language he understood; that the execution of the detention order was also delayed though the petitioner was in custody of the Police

Station, Janipur; that the petitioner was deprived of making an effective representation before the Government and Advisory Board in respect of the

detention passed by against him. Indeed, the prayer is for quashment of order impugned in the writ petition.

The counter affidavit has been filed separately on behalf of the respondent Nos. 2 & 3. The grounds raised for seeking quashment of detention

order is denied by the respondents in the affidavits. It is submitted that the petitioner has indulged in criminal cases from time to time and has not

mended his ways and earned bail or acquittal by winning over the witnesses or tempering with the evidence. The petitioner has been supplied all the

material by the respondents and has been explained the documents in the Dogri language which he understands. The order has been passed after due

application of mind by the respondent No.2. The respondents seek dismissal of the writ petition on the ground that the detention order has been passed

as per law.

The detention order has been approved by the Government vide order No. PB-V/85 of 2021 dated 02.02.2021 and has been extended hereinafter

vide order dated 09.03.2021.

Mr. K. S. Johal, learned senior counsel appearing on behalf of the petitioner and Mr. Aseem Sawhney, learned Additional Advocate General have

argued the matter as per the submissions made in their respective pleadings.

The order of preventive detention is passed with a view to prevent the person from committing such illegal activities in future which may be

prejudicial and harmful and disturb the public order. There has to be plausible reason for passing preventive detention order by the detaining authority

and there is no room for exhibiting callousness while passing such order as the liberty of the person gets curtailed. It is made clear by the Apex Court

in Haradhan Shah’s Vs. State of West Bengal 1975 3 SCC 198 that preventive detention and prosecution are not synonymous and having

different purposes. The relevant extract of the observations made by the court is as under:-

“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.

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.â€​

The mere passing of the detention order is not sufficient as the other statutory provisions are also required to be complied with in scrupulous

manner. The court would like to address this aspect of the matter in the first instance before proceeding further in the matter. The respondents have

pleaded that all the requirements were met by the authorities after the order of detention came to be passed against the petitioner herein. The perusal

of the documents annexed with the counter affidavit filed on behalf of the respondent No.2 reveals that while executing the order of detention the

petitioner has been supplied sixty leaves (60) and include copy of detention warrant, grounds of detention and copy of dossier and other relevant

documents. The documents have been read over to the petitioner in English and explained in Dogri language as well. The signature of the petitioner on

the receipt of grounds of detention is also there. The affidavit of Executing Officer Nayat Ali is also on record. The petition has been supplied the

detention order along with the relevant record on 27.01.2021 and the petitioner has himself admitted in the petition that the detention order was served

upon him on 27.01.2021 in the jail. The court does not find any reason to disbelieve the execution report as annexed with the counter affidavit filed in

the case. The court holds that the argument raised by the petitioner in this regard has no basis.

The main contention raised on behalf of the petitioner is that the detention order has been passed by the detaining authority without application of

mind. The learned counsel appearing for the petitioner has submitted that the detention order though mentions of number of FIRs in which the

petitioner is stated to have been involved yet the detention order does not mention of the outcome of some of the cases in which the petitioner has

either been acquitted, discharged or bailed out by the concerned court. The order is passed in a mechanical manner and even deprives the petitioner of

making an effective representation to the concerned authorities as provided under the Act.

Mr. Aseem Sawhney, learned AAG has argued that the order impugned is passed consequent to the dossier supplied by the respondent No.3 and

the application of mind is evident from the contents of order impugned itself.

The petitioner in his petition has given details of the cases in which he has been acquitted, discharged or bailed out by the concerned court. The

petition has also annexed the copy of the relevant orders passed by the respective court in this regard and the same is not in dispute. The perusal of

the petition reveals that the petitioner has been acquitted/discharged in Serial Nos.1, 2 and 3 of the list of the cases (FIR) mentioned in the impugned

order. In two of the FIRs registered against the petitioner he has been granted bail by the court. If the respondent No.3 has forwarded dossier with

other material to the detaining authority with recommendation for passing of the detention order and having mentioned number of cases registered

against the petitioner herein which even dates back to the year 1999 and there is no reason not to believe that the authority had knowledge of all the

proceedings of those cases which may have finally culminated or still pending by the time dossier were sent to the respondent No.2. The court fails to

understand what prevented the respondent No.3 from mentioning the status of those cases. The mentioning of the same is relevant as the respondent

No.2 would be in a better position to know the factual position of the cases while making subjective assessment on the dossier forwarded by the

respondent No.3. The court does find substance in the argument of the petitioner that the non-mentioning of the acquittal/discharge or the bail of the

petitioner in the dossier could possibly affect the decision making of the detaining authority. In other words, the impugned order which is more or less

is the reflection of the dossier can be said to be the result of the non-application of mind on behalf of the respondent No.2. As the liberty of the person

is involved and the person is to suffer detention without facing the trial it becomes imperative upon the concerned authorities to pass the detention

order with all consciousness.

In V.C. Mohan Vs. Union of India and others WP (Crl) No. 161/2002 decided on 01.03.2002 the Hon’ble Apex Court noted that the factum

of non placement of relevant documents by the concerned authorities before the detaining authority and held the same to have vitiated proceedings.

The detention order is required to be quashed on the above score alone.

The learned counsel for the petitioner has vehemently argued that the non-mentioning of the material facts not only deprives the detaining authority

of the real scenario of the case but also the Advisory Board constituted under the Act. The same has happened in the present case and this factor

dents the case of the respondents in the present case also. It is not made out from the record made available to the court that the Advisory Board was

also made aware of the proceedings which have taken place in the FIRs and especially in those cases in which the petitioner stands

acquitted/discharged or bailed out. The argument raised on behalf of the respondents that the wife of the petitioner had moved the Advisory Board

with a representation and thus shows that the petitioner had moved the authorities having knowledge of all the facts of the case. The court is not

impressed with the argument of learned counsel for the respondents. No doubt the petitioner has himself mentioned in the petition about making a

representation to the Principal Secretary to the Home Department against the detention order, however, the same has been taken into consideration by

the government authorities or the Advisory Board is not reflected. Undoubtedly, prejudice has been caused to the petitioner.

Learned counsel for the petitioner has argued that there was no occasion to pass detention order against the petitioner when the offences alleged

against him could be taken care of under ordinary law of land. Learned AAG appearing on behalf of the respondents has argued that the cases lodged

against the petitioner reflect the criminal mind of the petitioner and his failure to mend his ways was sufficient reason to pass the detention order. The

court is of the view that this aspect of the matter need not detain the court in view of the discussion made above. The very fact that the court has held

that the detention order is outcome of non-application of mind irrespective of nature of offences alleged against the petitioner the detention order does

not sustain in the eyes of law.

In view of the above, the court need not go into any other aspect of the case. Accordingly, the order impugned in the writ petition is quashed. The

petitioner shall be released forthwith if not required otherwise in any other case.

The petition is, accordingly, disposed of.

The record produced be returned to the learned AAG.