HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No.19/2025 Reserved on: 17.07.2025. Pronounced on: 22.07.2025 Sunil Kumar Age 22 years S/O Sh. Amarjeet Lal, R/O Radwan, Tehsil Ramgarh, District Samba A/P Lodged in District Jail, Kathua through his father Amarjeet Lal, S/O Durga Dass ….Petitioner(s) Through :- Mr. Satyajeet, Advocate. V/S 1. The Union Territory of Jammu & Kashmir through Commissioner/Secretary to Govt., Home Department, Civil Secretariat, Jammu 2. The District Magistrate, Samba. 3. Senior Superintendent of Police, Samba. 4. Superintendent, District Jail, Kathua. ….Respondent(s) Through :- Mr. Bhanu Jasrotia, GA. CORAM: HON’BLE MR. JUSTICE MA CHOWDHARY, JUDGE JUDGMENT 1. Petitioner challenged the detention order No.27/PSA of 2024 dated 23.12.2024 (impugned order), issued by respondent No.2, District Magistrate, Samba (hereinafter to be referred as “the detaining authority”), whereby petitioner namely Sunil Kumar S/O Amarjeet Lal, R/O Radwan, Tehsil Ramgarh, District Samba (for short „the detenue‟) has been placed under preventive detention, in order to prevent him from acting in any manner prejudicial to the maintenance of „public order & peace‟. 2 HCP No.19/2025 2. Petitioner contends that the Detaining Authority passed the impugned detention order, however, whole of the documents including copies of FIRs, challans, etc. were not supplied to him; that he was not explained the contents of the detention warrant and grounds of detention in the language he understands; that he was not informed of his right to file representation, as such, he was prevented to file an effective and meaningful representation to the detaining authority as well as government; that the detaining authority has passed the impugned detention order on the basis of 08 case FIRs which had been disposed of by the competent courts, thus vitiates the impugned detention order; that the detaining authority has not applied its mind to the material produced before it while passing the impugned order of detention. 3. The respondents have contested the writ petition by filing counter affidavit of the detaining authority. In the counter affidavit, it has been submitted that the impugned order of detention has been passed by the detaining authority after carefully analyzing the dossier dated 21.12.2024 submitted by SSP Samba; that keeping in view the continuous and repeated involvement of the Detenue in criminal activities, the Detenue was detained under the J&K Public Safety Act for maintenance of the public order with due application of mind; that the activities of the detenue were posing a serious threat to the maintenance of public order and peace; that the ordinary criminal law had failed to deter the detenue, from indulging in criminal activities, as such, the detaining authority was compelled to pass the impugned order of detention; that the respondents have supplied all the material to the detenue and have also read out and explained the contents thereof in the language he understands; that he was also 3 HCP No.19/2025 informed about his right to make a representation to the Government as well as to the detaining authority; that the respondents in order to lend support to their contentions, have produced the detention record. 4. Heard learned counsel for the parties at length, perused the record and considered the matter. 5. The detention record, as produced, reveals that the detune was involved in following 08 cases registered at different Police Stations:- 1) FIR No.203/2021 U/S 188 IPC, 11 PCA Act of P/S Kathua. 2) FIR No.299/2021 U/S 188 IPC of P/S Kathua 3) FIR No.72/2021 U/S 188 IPC, 11 PCA Act of P/S Ramgarh. 4) FIR No. 98/2023 U/S 188 IPC, 11 PCA Act of P/S Rajbagh 5) FIR No. 93/2023 U/S 188 IPC, 11 PCA Act of P/S Ghagwal 6) FIR No. 50/2023 U/S 188 IPC, 11 PCA Act of P/S Rajbagh 7) FIR No. 43/2024 U/S 188 IPC, 11 PCA Act of P/S Billawar 8) FIR No. 37/2024 U/S 188 IPC, 11 PCA Act of P/S Ghagwal Involvement of the detenue in the aforementioned cases appears to have heavily weighed with the detaining authority, while passing impugned detention order. 6. Though detenue has raised many grounds for assailing the impugned order of detention, yet, during the course of arguments, his counsel restricted his arguments to the contentions that the contents of the detention warrant and grounds of detention were not explained to him in the language he understands; that he was not supplied whole of the material which was relied on by the detaining authority while passing the impugned detention order; thereby violating his statutory and constitutional rights; and that the cases/FIRs in which the detenue was shown involved had been compounded/fined, therefore, there was no compelling reasons, so as to resort to invoke prevention detention. 4 HCP No.19/2025 7. Respondent no.2, the detaining authority, in his counter affidavit, has pleaded that whole of the material was supplied to the detenue and explained in the language he understands, in support whereof, there is an execution report of the executing officer PSI Rajat Sharma on detention record but since the detenue has all along denied the above assertions and stated that he was not explained the contents of the detention order and grounds of detention along with supporting material in the language he understands and also he was not informed of his right to file representation, the respondents, in order to substantiate their claim ought to have filed an affidavit of the Executing Officer, to that effect which was not filed. 8. The Hon‟ble Apex Court in a judgment titled “Sophia Gulam Mohd. Bham v. State of Maharashtra & Ors. (AIR 1999 SC 3051), has held as under: “The right to be communicated the grounds of detention flows from Article 22(5) while the right to be supplied all the material on which the grounds are based flows from the right given to the detenue to make a representation against the order of detention. A representation can be made and the order of detention can be assailed only when all the grounds on which the order is based are communicated to the detenue and the material on which those grounds are based are also disclosed and copies thereof are supplied to the person detained, in his own language.” 9. Therefore, the contention of the petitioner that the sufficient material, which formed the basis of grounds of detention, was not explained to him appears to be well founded. On this count, the impugned detention order is vitiated. 5 HCP No.19/2025 10. In view of law laid down by the various courts including the Hon‟ble Apex Court, the law in this aspect is well settled and is no longer Res Integra that the detenue must be informed of his right to make representation to the Detaining Authority as this is one additional avenue for his detention order to be reconsidered in addition to the representation made to the Government. It is also settled law that once the Government passes an order approving the order of detention, the Detaining Authority becomes functus officio thereafter cannot review its order. Therefore, the Detaining Authority had to inform the detenue about his right at the very outset so that the detenue can make a representation for reconsideration by the Detaining Authority and by not doing so, the impugned detention order is vitiated. 11. As regards the contention of the petitioner that he was not supplied the whole documents is concerned, a perusal of the Receipt of Grounds of Detention would show that the detenue was supplied grounds of detention along with notice of detention dated 23.12.2024 consisting of 41 leaves. The above receipt, apparently, does not mention that the detenue was supplied all the material including copies of FIRs/Challans, etc. The copies of FIRs/Challans are conspicuous by their absence. This brings the court to a conclusion that whole material is not supplied to the petitioner, disabling him from making an effective and meaningful representation. 12. Perusal of the grounds of detention would show that the petitioner is shown indulging in smuggling of bovine animals, with potential to promote feeling of enmity and disharmony among communities. The petitioner is referred to be involved in numerous criminal activities of serious and heinous nature over 6 HCP No.19/2025 a period of time thereby spreading a reign of terror amongst the peace loving people of the area by which anti-social activities the maintenance of public order was found to be a risk. The antecedents of the petitioner are established in the context of the FIRs. 13. Obviously, the FIRs referred in the grounds of detention are the feeding support to the characterization of the petitioner as formulated by the respondent No. 2 – District Magistrate, Samba. The objective of the preventive detention order against the petitioner is with respect to maintenance of „public order‟. If the FIRs are to be reckoned into consideration then by no stretch of reasoning the offences in which the petitioner was alleged to be involved, can be said to be related to maintenance of public order. By his alleged involvements, the petitioner may be a pain in the neck with respect to law and order maintenance but for that situation to be dealt with the legal course of action to deal with the petitioner is through Code of Criminal Procedure, 1973. J&K Public Safety Act, 1978 is not a tool in the hands of detaining authority to make a short-cut of the Code of Criminal Procedure, 1973 which is actually meant for convicting or acquitting an accused person charge-sheeted for alleged commission of offences, be it a solitary case or in a series of cases decided or pending against a particular accused person. 14. In the grounds of detention, the very fact that in almost in all the cases related to the FIRs registered against the petitioner, it is the offences under section 188 Indian Penal Code, read with offence under the Prevention of Cruelty to Animals Act, 1960, which are involved and that is a pointer to the fact that the same are not relatable in any manner, to maintenance of public order. On 7 HCP No.19/2025 record there is not even an single incident referred to or reported that by alleged involvements of the petitioner in anyone of the said FIRs, the so called communal tension or disharmony came to take place on such and such occasion which led to the law and order enforcement agency suffering a difficult time, in bringing under control the disturbed public order, so as to showcase the petitioner to be a threat to maintenance of public order. 15. The “Public Order” as a concept in distinction to “Law and Order” has been considered by the Hon‟ble Supreme Court of India in a long line of cases. In the case of “K. K. Saravana Babu Vs State of Tamil Nadu & Anr.” (2008)9 SCC 89, the Hon‟ble Supreme Court of India has recapitulated the case law on the said aspect in which the „Security of the State‟ followed by the „Public Order‟ and last by “Law and Order” has been set up in an hierarchy. The “Public Order” has been read to be even the tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of Public Order is meant to be distinguished from acts directing against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. By reference to a case of “Arun Ghosh Vs State of West Bengal,” (1970)1 SCC 1998, the Hon‟ble Supreme Court of India has laid emphasis on the potentiality of the act, to be a determining factor to compartmentalize an act to be one disturbing „public order‟ or a „law and order‟ problem. It has been observed that an act by itself is not determinant of its own gravity as in its quality it may not differ from another but in its potentiality it may be very different. 8 HCP No.19/2025 16. “Maintenance of Public Order” as being one of the grounds of subjecting a person to preventive detention is not to be easily assumed to be readily available by a just reference to series of FIRs reporting crimes against a particular individual, which would at the most render him to be branded as a habitual offender, for which the Code of Criminal Procedure, 1973 in itself has conceived a preventive measure under section 110 which enlists a number of categories for an Executive Magistrate to take cognizance and bind a person so as to prevent him from indulging in repeat of the alleged activities. What is meant to be effectively cured and dealt with under section 110 of the Code of Criminal Procedure, 1973 cannot be diverted to be dealt with by the application of prevention detention mode of J&K Public Safety Act, 1978 by depriving a person of his personal liberty for any given period of time. A preventive detention cannot be resorted to by the debunking ordinary criminal procedure and trial of cases. 17. Personal liberty is one of the most cherished freedoms, perhaps more important that the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanizing the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order must be strictly construed. However, where individual liberty comes into conflict with interest of the security of the State or public order, then the liberty of the individual must give way to the larger 9 HCP No.19/2025 interests of the nation. The Hon‟ble Apex Court in Smt. Icchu Devi Choraria v. Union of India & Ors. (AIR 1980 SC 1983) on personal liberty held as under: “The court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade. This is an area where the court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the court has not hesitated to strike down the order of detention or to direct the release of the detenue even though the detention may have been valid till the breach occurred.” 18. For the foregoing reasons and observations made hereinabove, in view of the facts of the instant case and the law laid down by the Hon‟ble Apex Court on the subject, the order of detention, impugned herein, does not sustain and is found liable to be quashed. Accordingly, Petition is allowed and the impugned order of detention bearing No.27/PSA of 2024 dated 23.12.2024, passed by respondent No. 2, District Magistrate, Kathua, is hereby quashed. The detenue- Sunil Kumar S/O Amarjeet Lal, R/O Radwan, Tehsil Ramgarh, District Samba is directed to be released from the preventive custody, forthwith, if not required in any other case(s). No order as to costs. 19. The record of detention be returned to the respondents through their counsel. 20. Petition is disposed of, accordingly. Jammu: 22.07.2025 Raj Kumar ) (MA CHOWDHARY) JUDGE Whether the order is speaking? Yes Whether the order is reportable? Yes Raj Kumar 2025.07.22 15:54 I attest to the accuracy and integrity of this document