Sunil Kumar and Another vs State and Another

A.M. Mir, J.—Two detention orders passed by District Magistrate, Jammu based upon stereo-type allegations, are challenged on the

identical grounds and as such this common judgment will dispose of both these petitions.

The grounds of challenge projected by the petitioners are as under:--

(i) That the grounds of detention are ill founded, incorrect and illusory.

(ii) That the documents referred to in the grounds have not been supplied under law.

(iii) That the orders suffer from non-application of mind.

(iv) That the matters were not referred to the Advisory Board.

(v) That no confirmation to the detentions was accorded by the competent authority.

The respondents' count-wise stand to the above grounds as indicated by their counter-affidavit is as under:--

(i) That the grounds are cogent, correct and well founded.

(ii) That the grounds have been duly received by the detenues.

(iii) That the orders of detention were passed after duly considering the criminal activities of the detenues after full application of mind.

(iv) That the cases were referred to the Advisory Board.

(v) Denied.

In the first instance, I want to refer to two preliminary objections raised by the State in their counter-affidavit. These are:-- firstly, that the

petitions were pre-mature and secondly, that the same were not filed by competent persons. Both these preliminary objections are otiose as the

same do not appeal to me. Neither is it explained as to how the petitions are pre-mature nor can there be any hard and fast rule for filing a Habeas

Corpus petition. Any person interested in the release of a detenu can come and file such petitions. Both these objections are, therefore, over-ruled.

I have heard the learned Counsel for the parties at length. Mr. Baldev Singh has produced the record also. I have gone through the prototype

pleadings and the record. In the light of the pleadings, record and arguments advanced, my findings in respect of the counter-claims of the parties in

seriatum are as under:--

(i) The validity or otherwise of grounds is to be determined by the detaining authority. It is a fact which should be admitted as a general principle

that the satisfaction of the detaining authority cannot be substituted by that of this Court. In this particular case, however, the question for

consideration of the court is as to whether or not repeated criminal acts by a detenu should form the basis for a belief that such acts disturb 'Public

Order.' I propose to deal with that point in para -- (iii) below. Therefore, no further discussions on this point are required here.

(ii) According to the petitioners, the relevant documents on which the detaining authority based the impugned orders were not supplied to them.

This has been denied by the respondents in their counter-affidavit by simply stating ""Sub-para (J) is denied."" I am not in a position to find out from

this evasive denial as to whether and when these documents were supplied.

Order 8, Rules 3 and 4 of Civil P.C. calls upon a party to be specific, pointed and elaborate on material particulars of their pleadings, and desist

from making evasive denials. The receipts obtained from the detenues on 31-12-1991 which find place at pages No. 22 and 17 respectively in the

departmental files of both the cases show that what were handed over to, and received by the detenues were the grounds of detention, of course in

Urdu and English. I have seen and signed both these documents. These, however, do not indicate that the copies of the FIR along with seizure

memos mentioned in the grounds of detention were ever supplied to the detenues. This point assumes much importance here because there is

nothing to show that the detenues who were lodged into custody were ever supplied with the copies of the FIR along with seizure memos by the

criminal courts in terms of Section 173 of Criminal P.C.

The mandate of Section 13 of the Jammu and Kashmir Public Safety Act, 1978 (hereinafter called the Act) is that the grounds of detention

should be communicated to the detenues. Although Section 13 does not expressly lay down that documents also shall be supplied. Yet the

intention of the Legislature can be gathered from the object of communication of grounds. The object on the plain reading of this provision is to

provide a detenu, the earlier opportunity of making a representation.

Law cannot be expected to require the detaining authority to communicate the grounds only for observance of a mere formality. On the other

hand, what law means is to enable the detenu to make a post detention representation for review of his order of detention. This is a laudable

object. Section 13 of the Act rightly keeps pace with the spirit of Articles 21 and 22 of Indian Constitution which provide a bulwark against any

curtailment of individual's liberty which is a highly sacrosanct right of the individual. This section by implication makes it imperative that the

documents which are referred to in the grounds of detention should be supplied his is so because in case, such documents are not supplied, it will

be equivalent to not providing an opportunity to the detenues to make representation rather scanding in his way to make one.

This point has come up for consideration before my learned brother Hon'ble Khan, J. in Sona Begum Vs. State and Others, He also has without

elaborating the point opined that, non-service of copies of FIR upon which the grounds of detention were based vitiates the detention order. I

while following this view in this case, further add that non-service of such FIR would render a detenue incapable of making a representation and

deprive him of a statutory right guaranteed u/s 13 of the Act.

The District Magistrate while not affording any opportunity to the detenues to make a representation has omitted to discharge the obligation

cast upon him in terms of said provision of law and disregarded the sanctity of such obligation.

The contention of the learned Counsel for the petitioners for bringing home that the impugned orders suffer from non-application of mind are

three fold :--

(a) That that offences referred to in the grounds of detention are directed against some individuals and not against the society at large. According to

the learned Counsel for the petitioners, such an offence howsoever, gruesome and committed with whatsoever frequency, can be dealt with under

substantive law and cannot be a ground for detention under the Act. These stray incidents may create a problem of 'law and order', but this cannot

be a case which can be said to have disturbed the 'public order'. Mr. Baldev Singh, learned Govt. Advocate, on the other hand, has opposed this

assertion and tried to canvass that the recurring incidents of assault justifiably could make the District Magistrate to believe that such repeated acts

of crime could be prejudicial to the 'public order'. He has referred to an authority of the Hon'ble Supreme Court reported in Alijan Mian Vs.

District Magistrate, Dhanbad and Others, and stressed that an act by which public feels scared, makes out a case of 'public order', because it

disturbs the tranquillity and the tempo of lives of people. The learned Counsel for the petitioners has on the other hand referred to a case cited Smt.

Victoria Fernandes Vs. Lalmal Sawma and others, . Supreme Court in this case has drawn a distinction between 'public order' and 'law and

order'. This authority expressly lays down that if the effect of criminal acts is confined only to a few individuals directly, as distinct from a wide

spectrum of public, it could only raise the problem of law and order. While as if an act sends alarm and scare to the society in rem, it may be a

case of 'public order'. I have gone through these two authorities. In fact both these authorities lay down one and the same principle. In fact the

potentiality of the criminal acts in shocking public peace and unleashing of terror wave is the touchstone in both the authorities on which their

lordships have decided whether or not acts of crime are prejudicial to public order. In the authority reported in Alijan Mian Vs. District Magistrate,

Dhanbad and Others, the question before the Hon'ble Supreme Court was whether two incidents of device explosion in public places were

sufficient to declare the acts of these detenues to be prejudicial to public order. These explosions were made at the dead of night whereupon public

had started running helter skelter to save their lives.

These incidents had stunned the public at large and sent terror waves all around. Keeping in view the nature of the offences, their Lordships while

holding that such acts disturbed the tranquillity and even tempo of lives of public termed them to be sufficient for being against the 'public order'.

However, in Smt. Victoria Fernandes Vs. Lalmal Sawma and others, their Lordships while disposing of this case, thoroughly kept in mind the basic

law enunciated by Alijan Mian Vs. District Magistrate, Dhanbad and Others, . Though that ruling has not been referred to. In this case also, their

Lordships have tested the occurrence attributed to the detenues on the anvil of the same touch stone. It will be pertinent to mention here that the

acts on which the detenues were charged in this case were that of assault directed against certain individuals, and these acts of violence did not in

their nature and magnitude send that shock wave, or terror wave to general public. Therefore, the Hon'ble Supreme Court held such cases to be

cases of law and order and not of public order.

While applying the above principle laid down by the apex Court, I find that the detenues here are alleged to have committed offences under

Sections 307/147/148/341/323/332 397 of RPC, Sections 4/27 and 4/25 of Indian Arms Act.

All these acts are acts of assaults and violence directed against some unnamed individuals. Even if these offences are taken to be correct, they

can be a matter of concern for a person or persons against whom these assaults were meant to be directed. These acts in view of their magnitudes

and directions can in no case be said to send a wave of terror to public at large nor can these acts be termed to be such which would disturb the

public tranquillity. Therefore, these acts cannot be said to make out a case of public order. Suffice it to say that the detaining authority while basing

his detention order on public order of this nature should always make sure that the act attributable to the detenues is such which sends a wave of

terror to the public at large and cause disturbance to the tranquillity and tempo of society. The detaining authority has in these cases, committed an

error by passing the order in such ground.

(b) The second facet of the arguments of the learned Counsel for the petitioners, while elaborating the point of lack of application on the part of

detaining authority was that without making sure whether or not a bail application was moved and without making any endeavour to contest that

bail application, if moved, the detaining authority has passed the impugned orders after considerable time gap from the date of occurrence. This

argument neither is important for the purpose of this case nor has weighed with me. The detention order was passed on 27-12-1991 while as latest

incident mentioned in the grounds dates to March 28, 1991. This could not be said to be considerable in time gap. So far as non-persuing of the

bail is concerned, that is a matter with which nobody except the State is concerned.

The next argument of the learned Counsel for the petitioners was that the cases were not referred to the Advisory Board. This has been boldly

asserted in para 8 of counter-affidavit. The District Magistrate in para 8(S) of his counter-affidavit has stated that the cases of the petitioners had

been referred to the Advisory Board. Here again the answering respondents have not taken the court into confidence as to when were the

petitioners' cases referred to the said Board and what followed after that reference. I have gone through the record files of both the cases and find

nothing there to show that the cases were ever referred to the Board. That being so, clear infraction of Section 15 of the Act has been caused by

such non-reference.

Last but not the least, ground taken by the learned Counsel for the petitioners is that the impugned orders having been passed by District

Magistrate were not subsequently approved by the government in terms of provisions of Sub-section (4) of Section 8 of the Act. Being devoid of

any approval from the Government, the order out lives its life after 12 days of its issuance. Mr. Sethi has referred to a judgment delivered by me in

Habeas Corpus petition No. 123/91 reported in 1992 (2) Crimes 221. While disposing of that petition, it was held that a detention order loses its

force in absence of an approval/confirmation from the Govt. This point has been discussed at length in that petition. However, it will be sufficient to

repeat that when an order is passed by an. Officer mentioned in Sub-section (2) of Section 8 of the Act, the life of such an order in absence of its

approval from the govt. is only 12 days. If no approval comes within this period, by a fiction of law, created in terms of Sub-section (4) of Section

8 of the Act, the said order shall lose its force.

On the foregoing analogy, I find that the orders impugned in these petitions are defective and cannot be maintained. I accordingly quash the

detention orders passed in both the cases. The petitions are allowed. However, there will be no order as to costs. Record is returned to the Govt.

Advocate.