Nazakat Ahmad Khan vs UT Of J&K And Others

Sindhu Sharma, J

District Magistrate, Srinagar detention order No. DMS/PSA/41/2023 dated 08.05.2023, under Section 8 of Jammu and Kashmir Public Safety Act, 1978, has placed Nazakat Ahmad Khan (hereinafter referred to as detenue), S/o Nazir Ahmad Khan, R/o Noorpora Tral, A/p Sadrani Takeri Uhampur, in preventive detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. This order of detention has been assailed by the detenue through his cousin Abdul Rashid Sood.

The impugned order of detention has been assailed by the detenu on the ground that the same has been passed by the detaining authority without any application of mind, as the detention order has been passed in a vague and casual manner, only on the dossier submitted by the Senior Superintendent of Police, Srinagar. The detenue has been detained relying upon two FIR Nos. 4/2023 and 18/2023, filed against unknown person are regarding offence under Section 457/380 regarding theft, burglary and trespass.

The detaining authority has assumed subjective satisfaction on the ground that detenue is prominent thief and his detention is warranted under Public Safety Act for maintenance of public order.

The detaining authority has also not informed the detenue about his right to make a representation to the Government. It is also submitted that there is no compelling reason to detain the detenue under preventive law as there is no material against the detenue to detain him.

Respondents have filed the counter affidavit and also produced the detention record. The respondents submit that the detenue has been detained validly and legally by virtue of detention order dated 08.05.2023. The detaining authority has passed the order of detention after arriving at its subjective satisfaction. All the statutory requirements and constitutional guarantees have been fulfilled and complied with by the detaining authority. The detenue has been detained keeping in mind that the object of the law of preventive detention is not punitive but preventive.

In compliance to the District Magistrate’s order of detention, the order of detention was executed by the Executing Officer PSI Rameez Ahmed. The contents of the grounds of detention were read over and explained to the detenue in the language he understood and the detenue has also informed of his right to make a representation. The detenue despite receiving all the material has not chosen to make a representation.

Heard learned counsel for the parties and perused the record.

The grounds of detention reveal that the detenue has been detained on the basis of dossier which has reported that the detenue was notorious thief of the area and responsible for spreading theft incidents in the area as well as instigating the local youth. His involvement has been shown in FIR No. 04/2023 under Section 457, 380 IPC of Police Station Saddar and FIR No. 18/2023 under Section 457, 380 IPC of Police Station Saddar. The Senior Superintendent of Police, Srinagar has further reported that the detenue is a chronic lawbreaker and in fact a propagator of public nuisance creating annoyance in the local people. The detenue was allegedly involved in commission of offences punishable under Section 457, 380 IPC in FIR No. 04/2023 and FIR No. 18/2023. The respondents are proceedings in terms of the said FIRs.

The only issue which arises for consideration is that the allegations against the detenue and his involvement in the said FIRs, which has been made as a basis of the detention order would be sufficient to place the detenue under detention in terms of the Public Safety Act. The grounds of detention even if accepted on its entirety, then also it can be said that the detenue would be a threat to maintenance of public order. The alleged involvement of the detenue in these offences can be dealt but the ordinary law of land.

This Court in “Khursheed Ahmad Bhat Vs. UT of J&K and others”, [WP(Crl) No.324/2022] dated 20.09.2022, while drawing a distinction between the expression “law and order” and “public order” has held as under: -

“The term "law and order" and "Public order" look deceptively similar but both have different connotations. While former is a continual ongoing term, the latter is more temporal in nature.

In the case of public order, the community or the public at large is affected by a particular action whereas the act or acts that affect only few individuals may be a case of law and order. Mere contravention of law such as indulging in cheating or criminal breach of trust certainly affects „law and order‟ but before it can be said to affect public order, it must affect the community or public at large. The nature of criminal act, the manner in which it is committed and its impact are some of the factors that determine whether a particular act would fall within the realm of "public order" or " law and order". What is alleged in the FIR, which is sole basis of putting the detenue under preventive detention, clearly falls within the ambit of term "Law and Order". Unless the criminal act attributed to the detenue has the effect of disturbing the even tempo of life of community or public at large, it would remain in the realm of "Law and order" and thus cannot be made the basis of preventive detention.”

The Hon’ble Supreme Court in “Rekha Vs. State of Tamil Nadu”, (2011) 5 SCC 244, while discussing the nature and scope of preventive detention has held as under: -

Prevention detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous, historic struggles. It follows, therefore, that if the ordinary law of the land (Indian Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal

Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation.

Hence, in our opinion, for this reason also the detention order in question was illegal.

In view of the law laid down by the Hon’ble Supreme Court, the allegations contained in the FIRs against the petitioner are of a law and order problem but would certainly not come within the purview of the term public order. There is nothing mentioned in the grounds of detention to demonstrate that the activities on the basis of which the detenue has been placed in detention has the impact of disturbing the even tempo of the life of the community or has an effect of affecting the public at large. These offences on which the detenue has been charged are substantive offences and the ordinary law of land is sufficient to deal with the detenue if he is ultimately found guilty of allegations leveled against him. These cannot be a ground for detaining the detenue that his remaining at large would be detrimental to the maintenance of public order.

It is next submitted that the detenue has not been provided all the material relied upon by the detaining authority while passing the order of detention.

Perusal of the record and receipt of grounds of detention reveals that the detenue has been provided with detention order (01 leaf), notice of detention (01 leaf), grounds of detention (02 leaves), dossier of detention (nil) and other documents (02 leaves) at Central Jail Kot-Bhalwal against proper receipt. The detenue was also informed that he can make representation to the detaining authority against his detention order, if he so desires.

Thus, the dossier of detention has not been provided to the detenue without which the detenue was precluded the right for making an effective representation. The detention order is, thus, illegal and unsustainable, in view of law laid down by the Apex Court in Sophia Ghulam Mohammad Bhan v. State of Maharashtra and others, AIR 1999 SC 3051.

In view of the aforesaid facts and law laid down by the Apex Court, the impugned detention order is unsustainable in the eyes of law and is liable to be quashed. Accordingly, this petition is allowed. The detention order No. DMS/PSA/41/2023 dated 08.05.2023, passed by the District Magistrate, Srinagar, under which detenu- Nazakat Ahmad Khan, S/o Nazir Ahmad Khan, R/o Noorpora Tral, a/p Sadrani Takeri Uhampur, is under detention, is quashed. Accordingly, the respondents are directed to release the detenu from the custody forthwith, provided he is not required in any other case.

Let the detention record be handed over to learned counsel for the respondents by the Registry forthwith.