HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Pronounced on :25.02.2025 HCP No. 128/2024 Sunil Kumar alias Gokal S/o Tarsem Lal R/o Village Chack Aslam, Tehsil R. S. Pura, District Jammu presently lodged in Central Jail Kot Bhalwal, Jammu through his brother Sandeep Kumar …. Petitioner(s) Through:- Mr. Jagpaul Singh, Advocate V/s 1. Union Territory of J&K through Commissioner-cum-Secretary to Government, Home Department, Civil Secretariat, Jammu 2. District Magistrate, Jammu 3. Senior Superintendent of Police, Jammu 4. Superintendent, Central Jail Kot Bhalwal, Jammu. …..Respondent(s) Through:- Mr. Rajesh Thappa, AAG CORAM : HON’BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. The detenu has assailed the Order of Detention No.PSA 22 of 2024 dated 06.05.2024 issued by the District Magistrate, Jammu, placing him under detention with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The said order of detention has been assailed by the detenu through his brother-Sandeep Kumar. 02. The detenu is aggrieved of the order of detention on the grounds that; (i) the same has been passed casually and mechanically without any application of mind and there were no sufficient grounds recorded by the Detaining Authority to justify that the alleged activities of the detenu were threat to public order, (ii) the grounds of detention are vague, uncertain and ambiguous as the Detaining Authority, as per the grounds of detention, has detained him for his activities for the purpose of preventing and combating 2 activities prejudicial to the security of the State, maintenance of public safety and to provide protection to the society, (iii) the detenu has not been provided all the material relied upon by the Detaining Authority while passing the order of detention which has resulted in infraction of constitutional and statutory safeguards as provided to him, (iv) the grounds of detention are replica of dossier and there is no application of mind by the Detaining Authority and (v) there is a delay in executing the order of detention which has resulted in the detention being unsustainable. 03. The respondents have filed the counter affidavit and detention record has also been produced. It is submitted that the detenu is a hardcore criminal who poses grave threat to the peace and harmony in the society. The detenu is a history sheeter, habitual of indulging in acts of violence and has spread a reign of terror amongst the people of the area. The anti-social activities of the detenu are prejudicial to the maintenance of peace. The Detaining Authority after arriving at its subjective satisfaction place the detenu in detention. All these statutory requirement and constitutional guarantee have been fulfilled and complied with by the Detaining Authority. The impugned order is legal and valid, therefore, the grounds taken in the petition are misconceived and unsustainable being without any merit. 04. Heard learned counsel for the parties and perused the record also. 05. The impugned order of detention has been assailed on number of grounds but learned counsel for the petitioner emphasizes on two grounds; (i) that there is delay in execution of detention order which has rendered the detention unsustainable and (ii) the Detaining Authority has passed the order of detention on the premise that the detenu‟s activities were prejudicial to the maintenance of public order, peace and security of the State. All the material relied upon by the Detaining Authority while passing the order of detention 3 has not been provided to the detenu. The first ground relied upon by the petitioner is that there is delay in execution of the order of detention which has rendered the detention unsustainable in law. 06. Perusal of the record reveals that the detention order dated 06.05.2024 was executed by the respondents on 27.06.2024. There is, thus, an inordinate and unexplained delay of almost two months in executing the order of detention. As per the execution report, detention order has been executed on 27.06.2024 but there is no explanation put forth by the Executing Officer regarding the difficulty faced in execution of the same. Preventive detention is to be resorted to only in case there is urgent need to detain a person to prevent him from indulging in any activities which are prejudicial to the maintenance of public order. There is unexplained delay in executing the order which has rendered the same unsustainable. 07. In „Manju Ramesh Nahar vs. Union of India and others’, reported as (1999) 4 SCC 116, it was held as under :- 13. Except making a vague allegation that the appellant was absconding and was apprehended on 23-4-1998 when the order was executed against him, the respondents have not given details of any steps that might have been taken in the meantime to execute the order against Ramesh Nahar. They could have taken appropriate steps under Section 7 of the Act or even under the provisions of the Criminal Procedure Code for securing the arrest of the husband of the appellant. 14. The detention order was passed on 3-2-1997 but it was executed on 23-4-1998. Obviously, the effect of non-execution of the order was that the authorities themselves gave liberty to the detenu to carry on his earlier activities giving rise, in that process, to a question whether the activities complained of were really prejudicial activities within the meaning of Section 3 of the Act. As pointed out above, the execution of the order of detention long after it was passed would have the effect of vitiating the order as also the “satisfaction” of the authorities who passed that order. 08. It was next submitted that all the material relied upon by the Detaining Authority has not been provided to the detenu. The execution report reveals that though the detention order, notice of detention, grounds of detention, Dossier of detention and other documents have not been 4 provided by PSI Sandeep Kumar Raju, to the detenu at Central Jail Jammu Kot-Bhalwal on 27.06.2024. Thus, it is apparent that all the relevant documents for making an effective representation have not been provided to the detenu. 09. Reliance is also placed on Thahira Haris etc. etc. Vs. Government of Karnataka and others, reported as AIR 2009 Supreme Court 2184, has held as under: “27. There were several grounds on which the detention of the detenu was challenged in these appeals but it is not necessary to refer to all the grounds since on the ground of not supplying the relied upon document, continued detention of the detenu becomes illegal and detention order has to be quashed on that ground alone. 28. Our Constitution provides adequate safeguards under clauses (5) and (6) of Article 22 to the detenu who has been detained in pursuance of the order made under any law providing for preventive detention. He has right to be supplied copies of all documents, statements and other materials relied upon in the grounds of detention without any delay. The predominant object of communicating the grounds of detention is to enable the detenu at the earliest opportunity to make effective and meaningful representation against his detention.” 10. Similar view has been held by the Hon‟ble Apex Court in Sophia Ghulam Mohd. Bham V. State of Maharashtra and others, reported as AIR 1999 SC 3051, and Ibrahim Ahmad Batti v. State of Gujarat, reported as (1982) 3 SCC 440. 11. The Detaining Authority has passed the order of detention on the premise that the detenu‟s activities were prejudicial to the maintenance of public order, peace and integrity of Union of India. It appears that the Detaining Authority in the grounds of detention has stated that it is necessary to detain the detenu for providing and combating activities prejudicial to the security of the State and maintenance of public safety and to provide protection to the society. It appears that the Detaining Authority was uncertain whether the detenu poses a threat to the public order or to the security of the State as per the provisions of J&K Public Safety Act are 5 distinct in addressing these two separate grounds of preventive detention, thus, the order of detention is without any application of mind. 12. Section 8 of the Public Safety Act provides that detenu can be arrested for acting in any manner prejudicial to the security of the State or maintenance of public order. That denotes that he can be detain on one of the grounds and he cannot be detained for both the grounds and if it is disclosed that the detenu has been detained on both the grounds then the detention order becomes invalid. Hon‟ble Supreme Court in the case of G.M. Shah (supra) while relying on Dr. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740 held thus:- “As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar - Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. 'Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors, AIR 1974 SC 258.” 13. In view of the ratio laid down by the Supreme Court in „G. M. Shah vs. State of J&K’, reported as (1980) 1 SCC 132, contention of the petitioner that the order impugned suffers from non-application of mind as the detaining authority was not certain whether the activities of the petitioner are prejudicial to the security of State or maintenance of public order and has mentioned both in the grounds of detention finds substance. 14. In „G. M. Shah vs. State of J&K’, reported as (1980) 1 SCC 132, it was held as under :- 6 As observed by Hidayatullah, J. (as he then was) in Dr. Ram Manohar - Lohia v. State of Bihar & Ors. one has to imagine three concentric circles, in order to understand the meaning and import of the above expressions. 'Law and order' represents the largest circle within which is the next circle representing "public order" and the smallest circle represents "security of State". It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of State. It is in view of the above distinction, the Act defines the expressions "acting in any manner prejudicial to the security of the State" and "acting in any manner prejudicial to the maintenance of public order" separately. An order of detention made either on the basis that the detaining authority is satisfied that the person against whom the order is being made is acting in any manner prejudicial to the security of the State or on the basis that he is satisfied that such person is acting in any manner prejudicial to the maintenance of public order but which is attempted to be supported by placing reliance on both the bases in the grounds furnished to the detenu has to be held to be an illegal one vide decisions of this Court in Bhupal Chandra Ghosh v. Arif Ali & Ors.(2) and Satya Brata Ghose v. Arif Ali & Ors. 15. In view of the aforesaid discussion and without adverting to the other grounds raised in this petition, this petition is allowed. Accordingly, detention order No. PSA 22 of 2024 dated 06.05.2024 issued by the District Magistrate, Jammu, is quashed. The detenu is directed to be released from custody forthwith, provided he is not required in any other case. 16. Detention record be returned to learned counsel for the respondents by the Registry forthwith. (SINDHU SHARMA) Judge JAMMU RAM MURTI/PS 25.02.2025 Whether the judgment is speaking : Yes Whether the judgment is reportable : Yes Ram Murti 2025.02.27 17:32 I attest to the accuracy and integrity of this document