Jammu & Kashmir High Court – Srinagar Bench
Irfan Ahmad Teli vs Union Territory Of J&K And Ors on 3 January, 2025
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
HCP No. 137/2024
Reserved on: 16.12.2024
Pronounced on: 03.01.2025
Irfan Ahmad Teli
.......Petitioner(s)
Through: Mr. M. Amin, Advocate
Versus
Union Territory of J&K and Ors.
.........Respondent(s)
Through: Mr. Syed Musaib, Dy. AG
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this writ petition, Order
No.DMS/PSA/03/2024 dated 29.03.2024, passed by District Magistrate,
Srinagar, whereby detenu, namely, Irfan Ahmad Teli S/o Abdul Majeed Teli
R/o Mukhdoom Mohalla Naseem Bagh, Srinagar, has been placed under
preventive detention with a view to prevent him from acting in any manner
prejudicial to the maintenance of public order, is sought to be quashed and
the detenu set at liberty on the grounds made mention of therein.
2. Respondents have filed counter affidavit, insisting therein that the
detenu came into contact with antisocial elements who motivated him to
indulged in anti-social and antinational activities in order to disturb the
public peace and order and subsequently in a short span of time, the detenu
got more confidence and became one of prominent nuisance/ trouble monger
vagabond, chronic street fighter, miscreant and cheater in his area. The
activities narrated in the grounds of detention have been reiterated in the
reply affidavit filed by respondents. The factual averments that detenu was
not supplied with relevant material relied upon in the grounds of detention
have been refuted. It is insisted that all the relevant material, which has been
relied upon by the detaining authority, was provided to the detenu at the time
of execution of warrant.
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3. I have heard learned counsel for the parties and considered the matter.
I have gone through the detention record produced by counsel for
respondents.
4. Learned counsel for petitioner would state that grounds of detention
are completely vague indefinite, cryptic and do not specify any specific
allegations against the detenu; that grounds of detention that the detenu
being a staunch cheater/fraudster and have cheated the general masses in
District Srinagar; inasmuch as there is only one FIR No. 73/2023 U/S 353-
IPC registered in Police Station, Nigeen and in this regard cases before
different courts are presently pending adjudication.
5. Learned counsel for petitioner vehemently avers that allegations in
aforesaid FIR supra do not fall within the ambit of Section 8 as is defined
under J&K Public Safety Act 1978, and, therefore, there is total non-
application of mind on the part of the detaining authority as the allegations
mentioned in grounds of detention are contrary to law qua Section 8 of the
Act. Even if, allegations mentioned in grounds of detention assumingly are
true, yet those would not fall as public order as is denied in terms of Section
8 (3) (b) of PSA inasmuch as there is no proximate link between the grounds
of detention and the eminent threat to the public order.
6. Further submission of learned counsel for petitioner is that impugned
detention order is without application of mind as there is no cogent reason
for respondent no.2 to pass the detention order inasmuch as criminal law has
already been set into motion against detenu. It is also averred that the
detaining authority has not given any justification or cogent reason for
passing of impugned order as to how the activities of the detenu are
prejudicial to the maintenance of public order, hence the detention order has
no proximity with the procedure as envisaged under law. He would also
contend that grounds of detention are replica of dossier submitted by police
and there is no independent application of mind by respondent.
7. Per contra, learned counsel for respondents insists that detention
order has been passed on subjective satisfaction by detaining authority and
detention order is in accordance with law and there is no violation or
infringement of rights guaranteed under the Constitution of India. Hence, he
pleads that petition be dismissed. It is also stated that the detenu being a
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staunch cheater/fraudster and has cheated the general masses in District
Srinagar and his aim and object is to create disturbance in social
order/public order in the Kashmir valley by way of his evil designs and there
are serious allegations levelled against the detenu as he is said to have been
creating a feeling of insecurity, pain and fear in the minds of the general
public and disturbing the peace, law and order in the UT of J&K, especially in
Srinagar and in this regard the criminal cases are already going on against the
detenu under various provisions of law and if he is found guilty, he will be
convicted and given appropriate sentence. May be, offences allegedly
committed by the detenu attract the punishment under the prevailing laws but
that has to be done under the prevalent laws and taking detention cannot be
made a substitute for ordinary law and absolve the investigating authorities of
their normal functions of investigating the crimes, which the detenu may have
committed. After all the preventive detention cannot be used as an instrument
to keep a person in the perpetual custody without trial.
8. In view of the rival contentions of parties and submissions made by
the learned counsel for the parties, it would be relevant to go through the
record on the file. Perusal of grounds of detention reveals that these are
replica of dossier with interplay of some words here and there. This, thus,
shows non-application of mind and in the process of deriving of subjective
satisfaction, has become causality. While formulating grounds of detention,
detaining authority has to apply its own mind. It cannot simply reiterate
whatever is written in the dossier. It is pertinent to mention here that the
observations of the Supreme Court in the case of Jai Singh and ors vs. State of
J&K” (AIR 1985 SC 764) which are reproduced hereunder:
“First taking up the case of Jai Singh, the first of the petitioners before us, a
perusal of the grounds of detention shows that it is a verbatim reproduction of
the dossier submitted by the Senior Superintendent of Police, Udhampur, to
the District Magistrate requesting that a detention order may kindly be issued.
At the top of the dossier, the name is mentioned as Sardar Jai Singh, father’s
name is mentioned as Sardar Ram Singh and the address is given as village
Bharakh, Tehsil Reasi. Thereafter it is recited “The subject is an important
member of ……..
Thereafter follow various allegations against Jai Singh, paragraph by
paragraph. In the grounds of detention, all that the District Magistrate has
done is to change the first three words “the subject is” into “you Jai Singh,
S/o Ram Singh, resident of village Bharakh, Tehsil Reasi”. Thereafter word
for word the police dossier is repeated and the word “he” wherever it occurs
referring to Jai Singh in the dossier is changed into “you” in the grounds of
detention. We are afraid it is difficult to find proof of non-application of
mind. The liberty of a subject is a serious matter and is not to be trifled with
in this casual, indifferent and routine manner.”
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9. This Court in the case of Noor-ud-Din Shah v. State of J&K and others
1989 SLJ 1, quashed the detention order as it was found that grounds of
detention was reproduction of the dossier supplied to the detaining authority
and held that it amounted to non-application of mind. The Court observed:
“I have thoroughly by examined the dossier submitted by the Superintendent
of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of
detention formulated by the latter for the detention of the detenu in the
present case, and I find the said grounds of detention are nothing but the
verbatim reproduction of the dossier as forwarded by the Police to the
detaining authority. He has only changed the number of paragraphs, trying in
vain to give it a different shape. This is in fact a case of non-application of
mind on the detaining authority. Without applying his own mind to the facts
of the case, he has acted as an agent of the police. It was his legal duty to find
out if the allegations levelled by the police against the detenu in the dossier
were really going to effect the maintenance of public order, as a result of the
activities, allegedly, committed by him. He had also to find out whether such
activities were going to affect the public order is future also as a result of
which it was necessary to detain the detenu, so as to prevent him from doing
so. After all, the preventive detention envisaged under the Act is in fact only
to prevent a person from acting in any manner which may be prejudicial to
the maintenance of public order, and not to punish him for his past penal acts.
The learned District Magistrate appears to have passed the impugned order in
a routine manner being in different to the import of preventive detention as or
detained in the Act, Passing of an order without application of mind goes to
the root of its validity, and in that case, the question of going into the
genuineness or otherwise of the grounds does not arise. Having found that
the detaining authority has not applied his mind to the facts of the case while
passing the impugned order, it is not necessary to go to the merits of the
grounds of detention, as mandated by Section 10-A of the Act.”
10. In view of above settled legal position, grounds of detention and dossier,
if similar in language, it would amount to non-application of mind on the part
of detaining authority. As already noted, in the instant case, it is evident that
dossier and grounds of detention contain similar expressions which show that
there has been non-application of mind on the part of detaining authority.
Impugned order of detention is, therefore, unsustainable in law on this ground.
11. Activities attributed to detenu in grounds of detention do not per se
attract or entail provisions of J&K Public Safety Act. Section 8(3)(b) of the
Act says that “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)
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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.
12. Does the expression “public order” take in every kind of infraction of
order or only some categories thereof. It is manifest that every act of assault
or injury to specific persons does not lead to public disorder. When two
people quarrel and fight and assault each other inside a house or in a street, it
may be said that there is disorder but not public disorder. Such cases are
dealt with under the powers vested in the executive authorities under the
provisions of ordinary criminal law but the culprits cannot be detained on
the ground that they were disturbing public order. The contravention of any
law always affects order but before it can be said to affect public order, it
must affect the community or the public at large. In this connection we must
draw a line of demarcation between serious and aggravated forms of
disorder which directly affect the community or injure the public interest and
the relatively minor breaches of peace of a purely local significance which
primarily injure specific individuals and only in a secondary sense public
interest is to be drawn. A mere disturbance of law and order leading to
disorder is thus not necessarily sufficient for action under the Prevention
Detention Act but a disturbance which will affect public order comes within
the scope of the Act. Reference in this regard is made to Pushkar
Mukherjee v. State of West Bengal, (1969) 1 SCC.
13. In Nenavath Bujji v. State of Telangana, 2024 INSC 239 : 2024 SC
Online SC 367, the Supreme Court has said that inability on the part of the
State’s police machinery to tackle the law and order situation should not be
an excuse to invoke preventive detention. It is also observed by the Supreme
Court that satisfaction cannot be inferred by mere statement in the order that
“it was necessary to prevent the detenu from acting in a manner prejudicial
to the maintenance of public order”. Rather the detaining authority will have
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to justify the detention order from the material that existed before him and
the process of considering the said material should be reflected in the order
of detention while expressing its satisfaction.Justification for such an order
should exist in the ground(s) furnished to the detenu to reinforce the order of
detention. It cannot be explained by reason(s) / grounds(s) not furnished to
the detenu. The decision of the authority must be the natural culmination of
the application of mind to the relevant and material facts available on the
record. It was also said by the Supreme Court that mere registration of two
FIRs for alleged offences of robbery etc. could not have been made the basis
to invoke the provisions of the Preventive Detention Act for the purpose of
preventively detaining a person and that in order to bring activities of a
person within expression of acting in any manner prejudicial to maintenance
of public order, the activities must be of such a nature that the ordinary laws
cannot deal with them or prevent subversive activities affecting society.
14. Based on the above discussion, Detention Order
no.DMS/PSA/03/2024 dated 29.03.2024, issued by District Magistrate,
Srinagar, against the detenuis quashed. As a consequence of which,
respondents, including Superintendent Jail concerned, are directed to set the
detenu at liberty forthwith provided he is not required in any other case.
Disposed of.
15. Detention record be returned to counsel for respondents.
(Vinod Chatterji Koul)
Judge
Srinagar
03.01.2025
(Qazi Amjad Secy.)
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