Jammu & Kashmir High Court
Mohd. Asgar Alias Tola vs The Union Territory Of J&K Through on 7 March, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No. 88
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case: HCP No.130/2024
CM No.5751/2024
CM No.5752/2024
1. Mohd. Asgar Alias Tola, ..... Petitioner(s)
Aged 54 years, S/o Bashir Ahmed,
R/o Ward No.3, Dera Chowadi,
Tehsil Bahu, District Jammu.
Through :- Mr. Rahul Raina, Advocate
Vs
1. The Union Territory of J&K through .....Respondent(s)
its Commissioner/Secretary, Home
Department, Civil Secretariat,
Jammu-180001.
2. The District Magistrate, Jammu-
180001.
3. The Senior Superintendent of Police,
Jammu-180001.
4. The SHO, Police Station, Channi
Himmat, Jammu-180001.
Through :- Mr. Rajesh Kumar Thappa, AAG
CORAM:
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
07.03.2025
01. The petitioner through the medium of the present petition has
challenged detention warrant issued vide No.32 of 2023 dated 24.11.2023
under Section 8 of J&K Public Safety Act, by respondent No.2-District
Magistrate, Jammu at pre-execution stage. The petitioner has also sought a
direction upon the respondents not to execute the impugned detention warrant.
2 HCP No.130/2024
02. It has been submitted in the writ petition that District Magistrate,
Jammu had vide detention order No.05 of 2020 dated 22.02.2020 booked the
petitioner under Section 8 of the Jammu and Kashmir Public Safety Act. It has
been contended that while passing the aforesaid detention order, the detaining
authority had placed reliance upon five FIRs registered against the petitioner at
the Police Station, Bahu Fort, Jammu and Police Station, Channi Himmat,
Jammu, however, the said detention order was quashed by this Court in terms
of judgment dated 01.09.2020 passed in WP(Crl) No.11/2020. While quashing
the detention order, this Court had observed that there has been non-
application of mind on part of the detaining authority while formulating the
grounds of detention. It has been submitted that after quashment of the earlier
detention order passed by this Court, three more FIRs came to be registered
against the petitioner, which according to him, are false and frivolous.
03. It has been further submitted that the aforesaid three FIRs were
registered against the petitioner and his brothers/family members on the basis
of complaints filed by Mohd. Muneer and Mohd. Ashraf, who happen to be the
sons of Abdul Gafoor. According to the petitioner, both these persons are
involved in grabbing of State land and are notorious people against whom the
Deputy Commissioner, Jammu has already taken action on a number of
occasions. It has been submitted that brother of the petitioner has also lodged
an FIR against one-Mohd. Muneer. According to the petitioner, Mohd.
Muneer, Mohd. Ashraf, Mohd. Latief and Mohd. Shakeel, who happen to be
the sons of Abdul Gafoor have lodged baseless FIRs against him and all these
three FIRs came to be registered against the petitioner after the earlier
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detention order was quashed against him. It has been submitted that now the
petitioner has entered into a negotiated settlement with the complainant of all
these three FIRs.
04. It has been submitted that the petitioner was taken by surprise when
on 15.09.2024, the police came to his residence and affixed a proclamation
issued by learned Chief Judicial Magistrate, Jammu in terms of Sections 84/85
BNSS against him, whereby he was asked to appear before the District
Magistrate, Jammu and to surrender within a period of one month. It has been
further submitted that after going through the order of proclamation issued by
learned Chief Judicial Magistrate, Jammu, he came to know that the impugned
warrant of detention has been issued against him.
05. The petitioner has challenged the impugned warrant of detention on
the grounds that the same has been issued by respondent No.2 on vague,
extraneous and irrelevant grounds. It has been further contended that the
warrant of detention could not have been issued against the petitioner on the
basis of the FIRs lodged by one particular family against him. It has been
further contended that the warrant of detention has been issued against the
petitioner on the basis of three frivolous FIRs.
06. Counter affidavit on behalf of respondent No.2 has been filed, in
which, it has been submitted that the petition is not maintainable because the
petitioner is evading the execution of impugned detention order and has been
declared as an absconder. It has been further contended that the petitioner is a
hardcore criminal, desperate character and a history-sheeter, who has been
indulging in acts of violence such as attempt to murder, assault, stabbing,
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rioting, burglary, and violation of Arms Act, land grabbing and other criminal
activities of serious nature. According to the respondents, the petitioner is a
threat to maintenance of public order.
07. I have heard learned counsel for the parties and perused the record.
08. The petitioner is challenging impugned warrant of detention at pre-
execution stage. Before proceeding to deal with grounds of challenge, this
Court has to keep in mind the legal position as regards the scope of
interference in preventive detention order at pre-execution stage. The law on
this subject has been settled by the Supreme Court in the case of ‘Additional
Secretary to the Government of India Vs. Alka Subhas Gadia 1992 (Suppl.1)
SCC 496, in which, the Supreme Court has held that the grounds, on which
courts can interfere with the order of detention at pre-execution stage, are very
limited and it is only if courts are prima facie satisfied (i) that the impugned
order is not passed under the Act under which is purported to have been
passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is
passed for a wrong purpose, (iv) that it is passed on vague, extraneous and
irrelevant grounds or (v) that the authority which passed had no authority to do
so. The aforesaid legal position has been reiterated by the Supreme Court in
the case of ‘Subash Popat Lal Dave Vs. Union of India (2014) (1) SCC 280’.
09. With the aforesaid legal position in mind, let us now advert to the
facts of the present case. The petitioner claims that the earlier detention order
against him was quashed by this Court, therefore, his fresh detention was not
warranted under law. In this regard, it is to be noted that the earlier detention
order was quashed by this Court on 01.09.2020. Thereafter, four more FIRs
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stand registered against the petitioner, which is clear from the record produced
by the learned counsel for the respondents. These cases are FIR No.45/2021
for offences under Sections 452, 447, 427, 336 and 147 IPC registered with
Police Station, Channi Himmat, Jammu, FIR No.182/2021 for offences under
Sections 409/120-B IPC registered with Police Station, Channi Himmat,
Jammu, FIR No.120/2022 for offences under Sections 386, 504, 506 IPC of
Police Station, Channi Himmat, Jammu and FIR No.174/2023 for offence
under Sections, 451, 427, 506 IPC registered with Police Station, Channi
Himmat, Jammu. Prior to the aforesaid FIRs the petitioner was found to be
involved in as many as four more FIRs. Therefore, in total, the involvement of
the petitioner has been found in eight FIRs.
10. The record produced by the learned counsel for the respondents,
which contains the grounds of detention shows that the detaining authority has,
on the basis of the allegations made in the aforesaid eight FIRs drawn
satisfaction that preventive detention of the petitioner is imperative for
preventing the petitioner for indulging in similar activities. Therefore, it cannot
be stated that the impugned order of detention has been passed by the detaining
authority for a wrong purpose or that it has been passed on vague, extraneous
and irrelevant grounds.
11. Apart from the above, the petitioner admittedly has been declared as
an absconder by Chief Judicial Magistrate, Jammu as he is evading the process
of law. Therefore, it is not open to this Court to come for the rescue of the
petitioner by either staying or quashing the impugned warrant of detention at
pre-execution stage.
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12. Learned counsel appearing for the petitioner has argued that the
allegations made in the FIRs, on the basis of which detention order has been
passed, relate to disputes between two families and such allegations cannot
form basis of a preventive detention order. The contention of the petitioner
cannot be accepted for the reason that in the grounds of detention, the
detaining authority has given details about various activities in which the
petitioner is stated to have indulged. The reference to the FIRs has been given
by the detaining authority with a view to demonstrate the propensity of the
petitioner to indulge in criminal activities. The fact that the petitioner has been
found involved in as many as eight FIRs registered over a period of several
years shows his consistent criminal bent of mind. Merely because these FIRs
have been filed at the behest of persons belonging to one family does not make
conduct of the petitioner less prejudicial to the maintenance of public order.
13. For the foregoing reasons, I do not find any merit in this petition.
The same is, accordingly, dismissed along with connected application(s).
14. Detention record be returned to learned counsel for the respondents.
(SANJAY DHAR)
JUDGE
JAMMU
07.03.2025
Shammi
Whether the order is speaking: Yes
Whether the order is reportable: No
SHAMMI KUMAR
2025.03.12 10:49
I attest to the accuracy and
integrity of this document
