IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU HCP No. 109/2024 Reserved on: 20.02.2025 Pronounced on: 25 .02.2025 Raman Kumar son of Bodh Raj resident of Kathar Tehsil Arnia District Jammu ...PETITIONER(S) Through: - Mr. Virender Dev Singh Advocate. Vs. Union Territory of J&K & and ors. …RESPONDENT(S) Through: - Mr. Rajesh Kumar Thappa AAG CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE JUDGMENT 1 This petition has been filed at the instance of the detenu by his mother, thereby challenging the detention order passed by District Magistrate Jammu-respondent No. 2, bearing No.PSA 21 of 2024 dated 04.05.2024, for short „the impugned order‟, whereby detenue, namely Raman Kumar son of Bodh Raj resident of Kathar Tehsil Arnia, District Jammu, has been detained under the provisions of Section 8 of the Jammu & Kashmir Public Safety Act, 1978, hereinafter for short as „Act‟, on the ground that his activities are prejudicial to the maintenance of public order. Accordingly, he has been directed to be lodged at Central Jail, Kot Bhalwal, Jammu. 2 FACTUAL MATRIX 2. The detenu was arrested by the SSP Samba on 18.08.2022 and remained in custody for one and a half years. Thereafter, he was handed over a copy of the detention order passed by the District Magistrate, Samba. The detenu was released on 23.03.2024. However, shortly after his release, on 26.03.2024, he was again illegally detained by the respondents. When his mother inquired about his detention, she apprised the authorities that there was no valid reason for detaining him, especially since he had already been in custody of the Superintendent, District Jail, Udhampur. Despite this, he was again illegally confined by the SHO, Police Station, Arnia. It is pertinent to mention here that, while the detenu was in the illegal custody of the respondents, he was detained under the impugned detention order. It was only after the documents were furnished to the detenue that representations were filed before the Government and the District Magistrate, Jammu. However, these representations were not considered, or if they were considered, no decision was communicated to the detenu. 3. Although, learned counsel for the detenu has raised many grounds for assailing the impugned order of detention, yet, during the course of arguments, he has laid much emphasis on the following two grounds: (i) The order impugned suffers from non-application of mind, as the detenu was already in custody at the time of its issuance. Therefore, there were no compelling reasons for the detaining authority to pass the detention order; and, (ii) The representation submitted to the Government as well as to the District Magistrate, Jammu has not been considered by the respondents. Even if it was considered, the decision has not been communicated to the detenu. 4. On the other hand, the respondents, in their counter affidavit, have disputed the averments made in the petition and stated that they have followed the provisions of J&K Public Safety Act. It is stated that 11 FIRs have been registered against the detenu and that, after drawing the subjective satisfaction, the impugned detention order has been passed by the detaining authority. 5 The first ground raised by the learned counsel for the detenu is that when the impugned order was passed, the detenu was already in custody of the police authorities for a substantive offence, therefore, there was no need to direct his preventive detention. It is submitted that that when the detention order was passed, the detenu was already in custody in connection with FIR bearing No. 44/2024, for offences under Sections 452/323/147, 3/25 Arms Act in which the detenu had neither been released on bail, nor had he applied for bail. Therefore, respondent No.02-District Magistrate, Jammu, did not apply his mind whether detention was necessary despite the fact the detenu was already in custody and had not been released on bail. There is nothing on record to indicate that respondent No. 02-District Magistrate, Jammu has applied his mind to the question whether an order of detention under Jammu and Kashmir Public Safety Act 1978 was necessary despite the fact that the detenu was already in custody. Therefore, non-application of mind on the part of detaining authority makes the detention order invalid and unsustainable in the eyes of law. The arrest of the detenu in the aforesaid FIR, at the time of the passing of the order of detention, has not been disputed. 6. Since the detenu was in the custody of the police at the time of passing of the order of detention, therefore, the question that arises for consideration is as to whether an order of detention could be passed in such circumstances ?. The answer to this question is an emphatic "No", taking into consideration the law laid down by the Hon‟ble Supreme Court in the case of Sama Aruna v. State of Telangana & Anr., reported in AIR 2017 SC 2662. Paragraph No.24 of the judgment is relevant to the context and is reproduced as under : "24. There is another reason why the detention order is unjustified. It was passed when the accused was in jail in Crime No. 221 of 2016. His custody in jail for the said offence was converted into custody under the impugned detention order. The incident involved in this offence is sometime in the year 2002-03. The detenue could not have been detained preventively by taking this stale incident into account, more so when he was in jail. In Ramesh Yadav v. District Magistrate, Etah and ors, this Court observed as follows: "6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenue was released on bail he would again carryon his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed." 7. The same view has been reiterated by the Hon'ble Supreme Court in paragraph No. 13 of the judgment rendered in the case of V. Shantha v. State of Telangana & Others, reported in AIR 2017 SC 2625, which reads as under : "13. The order of preventive detention passed against the detenue states that his illegal activities were causing danger to poor and small farmers and their safety and financial well being. Recourse to normal legal procedure would be time consuming and would not be an effective deterrent to prevent the detenu from indulging in further prejudicial activities in the business of spurious seeds, affecting maintenance of public order, and that there was no other option except to invoke the provisions of the Preventive Detention Act as an extreme measure to insulate the society from his evil deeds. The rhetorical incantation of the words "goonda" or "prejudicial to maintenance of public order" cannot be sufficient justification to invoke the draconian powers of preventive detention. To classify the detenue as a "goonda" affecting public order, because of inadequate yield from the chilli seed sold by him and prevent him from moving for bail even is a gross abuse of the statutory power of Preventive Detention. The grounds of detention are ex facie extraneous to the Act." 8 In the case of Jai Singh and others vs. State of Jammu and Kashmir, (1985)(1) SCC 561, the Hon‟ble Supreme Court while quashing the detention order on the ground of non-application of mind due to the fact that the detenu was already in custody, held as under: “We are afraid it is difficult to find greater proof of non- application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner. We also notice that in the petition filed by the detenu, he had expressly alleged that he and the others had already been taken into custody in connection with a criminal case on July 6, 1984 itself and all of them were in custody since then. The detenu has given details of where he was taken and when. He has also referred to the circumstance that an application for bail was moved on his behalf on the 18th before the High Court and it was only thereafter that the order of detention was made. These facts have not been denied in the counter-affidavit filed by the respondents. In fact we are unable to find anything in the records produced before us, either in the police dossier submitted to the District Magistrate for action or in any other document forming part of the record that the District Magistrate was aware that the petitioner was already in custody. There is nothing to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu & Kashmir Safety Act was necessary despite the fact that the petitioner was already in custody in connection with the criminal case. The cases of the other six petitioners are identical and in the circumstances, we have no option, but to direct their release forthwith, unless they are wanted in connection with some other case or cases”. 9 A Division Bench of this Court, in the case of Khan Mushtaq Ahmad versus State of J&K (HCP No. 173 of 2002, decided on 08.05.2003), while quashing the detention order on the ground that the detenu was already in custody arrested under Section 7/25 of the Arms Act and had neither applied for bail nor had been released on bail in the pending case, held, in paragraph (05) of the judgment, as under: 05. "On admitted facts, the detenue was arrested in FIR 294/2001, offence u/s 7/25 Indian Arms Act, Police Station Bandipora and had not applied for bail in the said pending FIR. In the absence of submission of an application, seeking bail in the court competent to take cognizance of the bail application, the assumption of the detaining authority, that the detenue was likely to be released on bail and in the event of his being released on bail, the detenue would indulge in activities prejudicial to the security of the state, seems to have been made without application of mind. In the present case, no bail application is shown to have been submitted and the accused is not shown to have been released on bail by any court in the FIR 294/2001. The detaining authority has not shown awareness of this fact in the order of detention, therefore, the order of detention has obviously been passed, without application of mind and is liable to be quashed. Habeas Corpus petition is accordingly allowed and order of detention No. 127 of 2001 dated 22.12.2001 is quashed. The detenue Mushtaq Ahmad Khan S/o Ghulam Rasool Khan R/o Nowpora Bandipora, shall be released forthwith, unless required in any other case". 10. Testing the instant case on the touchstone of the law laid down above, the detenu could not have been detained by invoking the provisions of the Jammu and Kashmir Public Safety Act, when he was already in the custody of the police authorities in connection with the aforesaid FIR. His custody in police for the offence stated above, has been converted into the custody under the impugned detention order. Ratio laid down in the judgments (supra) has settled the legal controversy that when a detenu is already in custody in a criminal case and has neither been released on bail, nor applied for bail, the District Magistrate cannot assume that the detenu is likely to be released on bail and that, upon his release, he would indulge in activities prejudicial to the maintenance of public order. Such satisfaction appears to have been recorded without proper application of mind, rendering the detention order liable to be quashed. 11 Another ground raised by the learned counsel for the detenu is that the representation against the impugned order of detention has not been considered by the respondents and, even if the same has been considered, the result thereof, has not been conveyed to the detenu, thereby violating his statutory and constitutional rights. In this regard, the detenu has placed on record a copy of the representation, which is stated to have been sent to the respondents through registered post on 29.07.2024. The relevant extracts of the representation are reproduced as under: “That the order of detention is perverse and has caused miscarriage of justice to the detenu because his right to life and personal liberty is badly affected by the detention order and he is detained in preventive custody on flimsy, false and frivolous grounds and without any substance, therefore, his right to life and personal liberty is affected especially when he is detained without adopting due course of law. In view of the aforesaid submissions, the detention as well as the extension orders are bad and are therefore liable to be revoked” 12 The respondents in their counter affidavit have denied receiving any such representation on behalf of the detenu. However, from a perusal of the detention record, it is evident that the representation was duly received by the respondents, which has been considered and rejected, and the result thereof stands conveyed to the District Magistrate Jammu as well as to the Superintendent, District Jail Udhampur, where the detenu was lodged, vide communication dated 03.09.2024. In these circumstances, it can be inferred that the result of consideration of the representation of detenu was duly conveyed to the detenu. Therefore, this ground is devoid of any merit. 13 In view of the above, the primary ground that the detenu was already in custody when the impugned order of detention was passed, as explained above, is sufficient to quash the detention order. Accordingly, the writ petition is allowed and the impugned order of detention is quashed. The detenu is directed to be released from the preventive custody forthwith, provided he is not required in connection with any other case. 14 The detention record be returned to learned counsel for the respondents. (Moksha Khajuria Kazmi) Judge Jammu 25 . 02.2025 “Sanjeev” Whether the order is speaking: Yes Whether the order is reportable: Yes