Jamsheed Ahmad Bhat vs Government Of J&K And Ors

M.A.Chowdhary, J

District Magistrate, Srinagar (hereinafter called ‗Detaining Authority‘) in exercise of powers under Section 8 of the Jammu & Kashmir Public Safety Act, 1978, passed the detention Order No. DMS/PSA/50/2021 dated 11.10.2021 (for short ‘impugned order’), in terms whereof the petitioner namely Jamsheed Ahmad Bhat S/o Ghulam Qadir Bhat R/o Guru Bazar, Srinagar (for short ‗detenue‘) was ordered to be detained and lodged in District Jail, Baramulla.

It is stated in petition on hand that the detenu has been implicated in case FIR No. 62/201 U/Ss 147,148,149,336,427,152 RPC registered at Police Station Shaheed Gunj and despite being implicated in substantive offences, detenu has been booked under preventive detention in terms of impugned detention order.

The impugned order of detention has been challenged on various grounds which are taken in alternative without prejudice to each other:

i/ the detaining authority has not followed the constitutional and statutory procedural safeguards as provided under article 22(5) of the Constitution of India.

ii/ the detenu has not been furnished the material relied upon by the detaining authority while passing impugned detention order such as copy of FIR, arrest memo, seizure/recovery memo and the statements recorded under section 161 Cr.P.C which has deprived the detenue to make a meaningful representation against his detention and it is also contended that the detenue is 8th standard pass only while as the order and grounds of detention have been read over and explained to him in a hyper technical language. The detenue was not in a position to understand the contents of the order and grounds of detention which also prevented him from filing a representation against his detention. The impugned order of detention is, therefore, liable to be set aside.

iii/ It is also contended that the detaining authority has not applied his own mind for passing detention order against a person who has no involvement in any illegal activity in recent past except having been implicated in a general FIR in 2016. This act is not only the non application of mind but is abuse of authority vested in the detaining authority under the preventive detention law. The allegations are bereft of specific details, even the date, month and year of alleged illegal activities of the detenue have not been mentioned in the grounds of detention. On such basis no prudent and reasonable man can make an effective and purposeful representation against his detention. On this ground also the order of detention deserves to be set aside.

iv/ The detenue has been detained for his activities which are allegedly prejudicial to both the ‗Security of the State’ as well as‘ Public Order’. It is further submitted that in terms of the provisions of the J&K PSA the detenue could have been detained, either for safeguarding the Security of State or Public Order. The detaining authority himself seems to be confused regarding as to whether the alleged illegal activities of the detenue are threat to the ‗Security of State’ or ‗Public Order’. The above said fact renders the detention order illegal.

The respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is contended that the detenue has been found indulging in unlawful activities such as stone pelting, unlawful assemblies and also found organizing /motivating the youth of Guru Bazar Shaheed Gunj, Srinagar and its adjoining area which are prejudicial to the maintenance of Security of UT of J&K and the detenue is involved in case FIR No. 62/2016 U/Ss 147,148,149,336,427,152 RPC registered at P/S Shaheed Gunj on account of and in view of aforesaid facts and circumstances the detaining authority found it necessary and imperative to invoke the relevant provisions of PSA of 1978 and subsequently detain the detenue in order to preclude the detenue from indulging in activities which would be prejudicial to the maintenance of public order; Copy of the PSA warrant, letter addressed to the detenue, grounds of detention and the material relied upon by detaining authority have been handed over to the detenue, contents thereof have been read over and explained to the detenue in a language which he fully understood; Further detenue was also informed about his right to make representation to the detaining authority or to the Government, if he so desire and to this effect the detenue has subscribed his signatures on the execution report.

The learned counsel for the respondents also produced the detention records to lend support to the stand taken in the counter affidavit.

I have heard learned counsel for parties and considered the matter.

Though various submissions have been made by learned counsel for petitioner to throw challenge to impugned detention order, yet one ground taken by him to square off instant case is suffice to be discussed herein. It is submission of learned counsel for the petitioner that impugned detention order has been passed on both expressions, viz. “acting in any manner prejudicial to the security of the State‖ and “acting in any manner prejudicial to the maintenance of public order‖, which reflects non-application of mind on the part of detaining authority. In support of this submission, he has placed reliance on the law laid down in case G.M. Shah v. State of J&K, 1980 (AIR) SC 494.

Taking into account the submissions made by learned counsel for parties, it would be appropriate to reproduce relevant portion of Section 8 of J&K Public Safety Act, 1978, hereinafter:

“8. Detention of certain persons. –

(1) The Government may-

(a) if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to—

(i) the security of the State or the maintenance of the public order;

……………………………………….

it is necessary so to do, make an order directing that such person be detained.

(2) any of the following officers, namely

(i) Divisional Commissioners,

(ii) District Magistrate, may, if satisfied as provided in sub-clause (i) and (ii) of clause [(a) or (a-1)] of sub-section (1), exercise the powers conferred by the said sub-sections.

(3) For the purposes of sub-section (1), [(a) Omitted.]

(b) "acting in any manner prejudicial to the maintenance of public order" means-

(i) promoting, propagating, or attempting to create, feelings of enmity or hatred or disharmony on ground of religion, race, caste, community, or region;

(ii) making preparations for using, or attempting to use, or using, or instigating, inciting, provoking or otherwise, abetting the use of force where such preparation, using, attempting, instigating, inciting, provoking or abetting, disturbs or is likely to disturb public order;

(iii) attempting to commit, or committing, or instigating, provoking or otherwise abetting the commission of, mischief within the meaning of section 425 of the Ranbir Penal Code where the commission of such mischief disturbs, or is likely to disturb public order;

(iv) attempting to commit, or committing or instigating, inciting, provoking or otherwise abetting the commission of an offence punishable with death or imprisonment for life or imprisonment of a term extending to seven years or more, where the commission of such offence disturbs, or is likely to disturb public order;

…………………………..….

(4) When any order is made under this section by an officer mentioned in sub-section (2) he shall forthwith report the fact to the Government together with the grounds on which the order has been made and such other particulars as in his opinion have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless in the meantime it has been approved by the

Government.‖

As is evident from Section 8(1)(i) and Section 8(2) of the Act of 1978, the Government or District Magistrate may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or maintenance of public order, make an order directing that such person be detained. The expression “acting in any manner prejudicial to the security of the State‖ is defined in Clause (a) of Subsection (3) of Section 8 of the Act as making preparation for using or attempting to use, or using or instigating, inciting, provoking or otherwise abetting the use of force to overthrow or overawes the Government established by law in the State. Clause (b) of Section 8(3) of the Act of 1978 defines the expression “acting in any manner prejudicial to the maintenance of public order‖. The distinction between the two expressions lies in the fact that while in the case of the former, the object of making preparation or instigating or abetting the use of force etcetera, should be with a view to overthrow or overawe “the Government established by law in the State‖, in the case of the latter, the object of the acts mentioned therein should be disturbance in public order.

As has been said by the Supreme Court in G. M. Shah (supra), the expressions “law and order‖, “public order‖ and “security of the State‖ are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State‖.

In the present case, intriguingly, detaining authority has made use of both expressions “prejudicial to security of the State‖ as well as “prejudicial to maintenance of public order‖. Not only this, counter affidavit filed by respondent no.2, more particularly at paragraph 1, mentions that activities of detenu were highly prejudicial to the maintenance of “public order‖ and “security of the State‖. Reliance on both the factors in the grounds of detention furnished to detenue is to be held illegal one and as a result thereof impugned order is vitiated.

For the foregoing reasons, this petition is allowed and detention Order No.DMS/PSA/50/2021 dated 11.10.2021, passed by District Magistrate, Srinagar, is quashed. Respondents are directed to release the detenu forthwith, provided he is not required in any other case(s).

Disposed of.

Detention record be returned to learned counsel for respondents.