Jammu & Kashmir High Court – Srinagar Bench
Waqar Bashir Bhat vs Union Territory Of J&K Through … on 24 December, 2024
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
AT SRINAGAR
HCP No.124/2024
Reserved on: 19.12.2024
Pronounced on: 24.12.2024
Waqar Bashir Bhat, aged 33 S/o Late Bashir Ahmad Bhat R/o Mohalla New
Colony Kreeri, Tehsil Kreeri District Baramulla R/o Heffkuri, Tehsil Zanipora
District Shopian.
....... Petitioner(s)
Through: Mr. B. A. Tak, Advocate
V/s
1. Union Territory of J&K through Principal Secretary to Home
Department, Civil Secretariat, Srinagar/ Jammu
2. District Magistrate, Baramulla
3. Sr. Superintendent of Police, Baramulla
Through: Mr. Syed Musaib, Dy.AG
......Respondent(s)
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this writ petition, petitioner prays for quashment of
detention Order No.26/DMB/PSA/2024 dated 12.04.2024, passed by District
Magistrate, Baramulla – respondent no.2, whereby detenu, namely,Waqar Bashir
Bhat, S/o Late Bashir Ahmad Bhat R/o Mohalla New Colony Kreeri, Tehsil
Kreeri, District Baramulla,has been placed under preventive detention with a
view to prevent him from acting in any manner prejudicial to the maintenance of
Public Order in the UT of J&K, on the grounds made mention of therein.
2. Respondents have filed reply affidavit, insisting therein that the activities
indulged in by detenu are anti-national and anti-social and his activities pose a
great threat to the peace and tranquillity in Tehsil Kreeri as he is involved in the
activities prejudicial to the maintenance of public Order of UT of J&K. The
activities narrated in the grounds of detention have been reiterated in the
reply/counter 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 parties and considered the matter.I have
gone through the detention record produced by counsel for respondents.
4. Learned counsel for petitioner has stated that the detenu has been shown
involved in FIR Nos.72/2010,78/2010, 61/2016, 56/2016 & 66/2016 registered in
Police Station Kreeri with respect whereof he is facing trial;that the material with
regard to above FIRs have not been provided to detenu to enable him to make a
representation against his detention inasmuch as allegations made in the grounds
of detention are vague and indefinite and no prudent man can make an effective
representation against these allegations and that allegations mentioned in grounds
of detention have no nexus with detenu and detaining authority has passed
impugned order of detention in a mechanical and casual manner without
application of mind. It is also stated that detaining authority in impugned
detention order has mentioned that detenu is being placed under preventive
detention as his activities are prejudicial to the maintenance of Public Order in the
UT of J&K, whereas in the grounds of detention, at one place it is mentioned that
the activities of the detenu areprejudicial to maintenance of public order and at
another place it is mentioned that activities of the detenu are highly prejudicial to
the maintenance of Security of UT of J&K which reflects non-application of mind
on the part of detaining authority because detention order is to be issued either for
„public order‟ or „Security of the UT of J&K‟ but not under both the heads
and,therefore, impugned order of detention is liable to be quashed.
5. Learned counsel for petitioner has also vehemently argued that a
representation was made by wife of detenu to respondents for releasing the
detenu, but the record reveals that the same was neither considered nor decided by
respondents nor detenu was produced before Advisory Board for providing him
an opportunity of being heard so that he could explain to the members of the
Board that detenu is innocent and his order of detention deserves to be revoked
and he be set at liberty. It is also stated that it appears that grounds of detention
are replica of dossier and unequivocally reflect and show non-application of mind
on the part of detaining authority.
6. As already noted, learned counsel for detenu contends thatdetaining
authority, while passing impugned detention order, was not certain as to on which
ground impugned order was to be passed because it has made reference to both
the expressions, namely, “activities prejudicial to the maintenance of public order
in the impugned detention order and in grounds of detention at one place it is
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mentioned that “activities are highly prejudicial to the maintenance of public
order” and at another place”activities of the detenu are highly prejudicial to the
maintenance of security of UT of J&K”.
7. Taking into account the submissions made by learned counsel for parties, it
would be appropriate to say that the Government may, if satisfied with respect to
any person that with a view to prevent him from acting in any manner prejudicial
to the maintenance of the public order or the security of the State, make an order
directing that the person be detained. When the law providing for preventive
detention permits detention of a person whose activities are prejudicial to defence,
security of India or security of the State, it will be lawful to detain such person if
any of his activities is considered by detaining authority affecting security of the
State. Reliance is made toA. K. Roy v. Union of India, AIR 1982 SC 710. The
security of the State can be put to danger by crimes of violence intended to
overthrow the government. The expression “security of the State” includes
economic security also. Those who commit economic offences do harm to the
national interest and economy of the State and can be detained under preventive
detention. Counterfeiting of currency and putting the same in circulation
destabilize the economy of the State ad it affects the security of the State.
Reference is made to Santokh Singh v. Delhi Administration, 1973 SC 1091;
A.G. v. Amritlal(1994) 5 SCC 54; Safiya v. Government of Kerala, AIR 2003 SC
3562; Bashir Ahmad v. State 2004 (ii) SLJ 550. The question to as is: “does it
lead to disturbance of the public order or does it affect merely an individual
leaving the tranquillity of the society undisturbed”? This question has to be faced
in every case on its facts. “Public order”, “Law and order”, and “security of the
State”, draw three concentric circles, the largest representing law and order, the
next representing public order and the smallest representing security of the State.
Every infraction of law must necessarily affect order, but an affecting law and
order may not necessarily also affect the public order. Likewise, an act may affect
public order, but not necessarily the security of the State. The true test is not the
kind, but the potentiality of the act in question. One act may affect only
individuals while the other, though of a similar kind, may have such an impact
that it would disturb the even tempo of the life of the community. This does not
mean that there can be no overlapping in the same that an act cannot fall under
two concepts at the same time. An act, for instance, affecting public order may
have an impact that it would affect both public order and security of the State.
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8. Perusal of relevant case law, thus, would show that “public order” specifies
something more than “law and order”. The breach of public order involves a
degree of disturbance and it affects upon the life of the community in a locality,
which determines whether the disturbance amounts only to breach of law and
order and not a public order. The difference between two concepts is in only one
degree. An act affecting law and order may not necessarily also affect the public
order and an act which might be prejudicial to public order may not affect the
security of the State. Public order is synonymous with public safety and
tranquillity and it is the absence of any disorder involving breaches of local
significance in contradiction to national upheavals, such as revolution, civil strife,
war, affecting the security of the State.
9. In Dr Ram Manohar Lohia v. State of Bihar and others, 1966 AIR SC
740, it has been held by the Supreme Court that any contravention of law always
affects order but before it can be said to affect public order, it must affect the
community or the public at large. It was observed that offences against “law and
order”, “public order” and “security of the State” are demarcated on the basis of
the gravity. It is the degree of disturbance and its affect upon the life of the
community in a locality which determines whether the disturbance amounts only
to breach of law and order though in the grounds of detention, the detaining
authority had stated that by committing this offence in public, the detenu created a
sense of alarm, scare and a feeling of insecurity in the minds of the public of the
area and thereby acted in a manner prejudicial to the maintenance of public order
which affected the even tempo of life of the community. It was held that mere
citation of these words in the order of detention was more in the nature of a ritual
rather than with any significance to the content of the matter.
10. The determining test in all such cases is “the act leads to disturbance of the
current of life of the community so as to amount to a disturbance of the public
order or does it affect merely an individual leaving the tranquillity of society
undisturbed”. The expression “law and order”, “public order” and “security of the
State” are distinct concepts though always not separate. Every public order if
disturbed, must lead to public disorder but every breach of the peace does not lead
to public disorder. For example, when two drunkards quarrel and fight there is
disorder but not public disorder. They can be dealt with under the powers to
maintain law and order but cannot be detained on the ground that they were
disturbing public order. Disorder is no doubt prevented by the maintenance of law
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and order also but disorder is a broad spectrum which includes at one end small
disturbances and at the other the most serious and cataclysmic happenings.
11. As has been held by the Supreme Court in G.M. Shah v. State of J&K, 1980
(AIR) SC 494, 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”.
12. The distinction between “Law and order” and “Public order” has been
pointed out in Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228. According
to that decision, the true distinction between the areas of “law and order” and
“public order” is “one of degree and extent of the reach of the act in question
upon society”. The Supreme Court pointed out that “the act by itself is not
determinant of its own gravity. It its quality it may not differ but in its potentiality
it may be very different”.
13. In the present case, detaining authority has made use of both expressions
“prejudicial to maintenance of public order” as well as “prejudicial to security of
the State”. Impugned detention order, made on the basis of grounds of detention
using both expressions by the detaining authority to place detenu under preventive
detention, in view of above discussion and well settled law, is held illegal and
consequently impugned order is vitiated.
14. The submission urged by learned counsel for detenu and is also made
mention of in the petition, is that representation made by detenu through her wife
has not been considered by the respondents. Perusal of detention record does not
reveal or indicate anything about receipt or consideration of representation. It is
thus, evident from the pleadings of the respondents as well as detention record
that the representation submitted on behalf of the detenu has not been considered
by respondents so far. Admittedly, a copy of representation, placed on record by
petitioner as Annexure II, has been filed by detenu through her wife, against
detention on 20.04.2024 and the same has not been considered till date inasmuch
as respondents in their reply to ground 3 (i) have submitted that order of detention
alongwith the material and representation, if any, filed by the detenu is examined
thoroughly by the Advisory Board, but what has been done to it is not coming
forth from the reply. The record also does not show that the representation so filed
has been forwarded to the Advisory Board for consideration; even if, it could have
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been forwarded to the Government/Advisory Board, which is missing from the
reply filed by respondents. Thus, there is a force in the submission of learned
counsel for detenu that non-consideration of representation of detenu vitiates
impugned order of detention.
Law in this regard is settled as the Supreme Court in Tara Chand v. State of
Rajasthan and others, 1980 (2) SCC 321 and Raghavendra Singh v.
Superintendent, District Jail, Kanpur and others (1986) 1 SCC 650, has held that if
there is inordinate delay in considering the representation that would clearly
amount to violation of the provisions of Article 22(5) as to render the detention
unconstitutional and void.
15. In Rajammal v. State of Tamil Nadu and others, 1999(1) SCC 417, it has
been held as follows:
“It is a constitutional obligation of the Government to consider the
representation forwarded by the detenu without any delay. Though no
period is prescribed by Article 22 of the Constitution for the decision to be
taken on the representation, the words “as soon as may be” in clause (5) of
Article 22convey the message that the representation should be considered
and disposed of at the earliest.”
16. In K. M. Abdulla Kunhi v. Unio of India (1991) 1 SCC 476, it has been held
as follows:
“…. it is settled law that there should not be supine indifference, slackness or
callous attitude in considering the representation. Any unexplained delay in
the disposal of the representation would be breach of the constitutional
imperative and it would render the continued detention impermissible and
illegal.”
17. For the reasons discussed above, detention Order no.26/DMB/PSA/2024
dated 12.04.2024, passed by District Magistrate, Baramulla, is quashed.
Respondents, including Jail Superintendent concerned, are directed to release
the detenu forthwith, provided he is not required in any other case.
18. Disposed of.
19. Detention record be returned to counsel for respondents.
(Vinod Chatterji Koul)
Judge
SRINAGAR
24.12.2024
(Qazi Amjad,Secy)
Whether the order is reportable: No.
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