HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(Crl) No. 50/2022 Reserved on: 20.02.2025 Pronounced on: 09.05.2025 (i) Mohd. Latief @ Bijju, Age 44 years, S/o Abdul, R/o Village Chajjla, Tehsil Mankote, District Poonch. …. Petitioner/Appellant(s) Through:- Mr. Ajaz Chowdhary, Advocate. V/s (i) UT of J&K through Financial Commissioner-cum- Secretary to the Government, Home Department, Civil Secretariat, Jammu (ii) The District Magistrate, Poonch (iii) Sr. Superintendent of Police, Poonch (iv) Superintendent, District Jail, Poonch …..Respondent(s) Through:- Mr. P.D. Singh, Dy. AG CORAM: HON‟BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT 01. The petitioner has challenged the legality, propriety, and correctness of impugned Detention Order No. 02/DMP/PSA of 2022 dated 22.08.2022, passed by the District Magistrate, Poonch, under Section 8(4) of the Jammu and Kashmir Public Safety Act, 1978, at pre-execution stage. 02. The District Magistrate, Poonch, has passed the detention order against the petitioner on the basis that he has been involved in various criminal activities since 2013, resulting in the registration of multiple FIRs against him, in which he has been formally charged. It is stated that the petitioner, in connivance with other criminal elements, is alleged to have created an atmosphere of fear and intimidation, thereby disturbing public peace and WP(Crl) No. 50/2022 harmony in and around the Chajjla/Tain Mankote area of District Poonch. It is also said that the petitioner has a tendency to intimidate the local population and to provoke anti-social elements against the local administration in the discharge of their lawful duties. 03. The petitioner is said to be involved in as many as five FIRs, i.e., FIR No. 122/2013 registered under Sections 324/323 RPC at Police Station, Mendhar; (ii) FIR No. 162/2014 registered under Sections 341/323/147 RPC at Police Station, Mendhar; (iii) FIR No. 136/2017 registered under Section 188 RPC at Police Station, Mendhar; (iv) FIR No. 149/2018 registered under Sections 147/323/504/506 RPC at Police Station, Mendhar and (v) FIR No. 177/2022 registered under Sections 353/332/382/147 IPC at Police Station, Mendhar. 04. The order of detention, passed by the Detaining Authority, has been assailed by the petitioner on the grounds that; (i) the impugned order of detention has been passed by respondent No. 2 in an unreasonable, arbitrary and mala fide manner only to cause undue inconvenience and harassment to the detenu; (ii) the Detaining Authority has not arrived at its subjective satisfaction while passing the impugned order of detention; (iii) that there is no live link between the alleged prejudicial activities and the purpose sought to be achieved through the detention of the petitioner; (iv) that relevant and vital material was not placed before the Detaining Authority, resulting in non-consideration thereof, rendering the detention order bad in law; (v) the impugned order of detention has been passed based on private disputes, and the activities of the petitioner are not prejudicial or detrimental to public order; (vi) that the grounds of detention mentioned in the detention order are WP(Crl) No. 50/2022 a verbatim reproduction of the police dossier, reflecting total non-application of mind by the Detaining Authority; and (vi) that the respondents have exercised the powers conferred upon them under the Jammu and Kashmir Public Safety Act, 1978, in an arbitrary and mala fide manner, thereby infringing the fundamental rights guaranteed to the petitioner under the Constitution of India. 05. The respondents have objected to this petition and have filed their counter affidavit. 06. In their counter affidavit, the respondents have submitted that the petitioner has been involved in various criminal activities since 2013, due to which multiple FIRs have been registered against him at Police Station, Mendhar, and he has also been charged and is facing trial before the competent Court of law. However, despite this, the petitioner has not reformed his behavior so as to become a law-abiding citizen. Instead, he has continued to target, torture, and harass innocent people on one pretext or another, primarily for the purpose of extorting money. It is further alleged that such conduct has become habitual for the petitioner, and he has created a reign of terror in the area with an intent to establish a ‘Gunda Raj’. The petitioner is said to frequently move around the villages of Chajjla, Tain, Mankote, and other adjoining areas during night hours, thereby posing a serious threat to the life and property of the residents and is deeply inclined to create a law and order problem. 07. It is further submitted that the present petition is not maintainable as the petitioner is yet to be arrested, and the contentions raised in the writ petition are not covered by the judgment passed by the Hon’ble Apex Court in WP(Crl) No. 50/2022 „Additional Secretary to the Government of India and others vs. Smt. Alka Subhash Gadia and another‟, reported as 1992 Supp (1) SCC 496. 08. Heard learned counsel for the parties and perused the record. 09. The power of the High Courts to set aside a preventive detention order at the pre-execution stage was first considered by the Hon’ble Apex Court in Alka Subhash Gadia (supra). In the said case, the Hon’ble Supreme Court held that the scope for judicial interference at the pre- execution stage is extremely limited and can be exercised only in rare and exceptional circumstances. The Court observed that such interference is permissible only when the courts are prima facie satisfied that: (i) that the order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law. It is always open for the detenu or anyone on his behalf to challenge the detention order by way of habeas corpus petition on any ground available to him. 10. In ‘Deepak Bajaj vs. State of Maharashtra and another‟, (2008) 16 SCC 14, the Hon’ble Apex Court held that: “...In Alka Subhash Gadia case, 1992 Supp (1) SCC 496, the Supreme Court only wanted to lay down the principle that entertaining a petition against a preventive detention order at a pre-execution stage should be an WP(Crl) No. 50/2022 exception and not the general rule. The proposition is entirely agreed to. However, if a person against whom a preventive detention order has been passed comes to Court at the pre-execution stage and satisfies the Court that the detention order is clearly illegal, there is no reason why the Court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). To tell such a person that although such a detention order is illegal, he must yet go to jail though he will be released later, is a meaningless and futile exercise. If a person is sent to jail, then even if he is subsequently released, his reputation may be irreparably tarnished.” (Paras 8, 15, 9 and 12) 11. The Hon’ble Supreme Court further expanded the scope of judicial review in such matters by holding that where a detention order is patently illegal, courts are not precluded from quashing it merely because it is challenged at the pre-execution stage. The relevant portion of the judgment reads as under: “18. It must be remembered that every person has a fundamental right of liberty vide Article 21 of the Constitution. Article 21, which gives the right of life and liberty, is the most fundamental of all the Fundamental Rights in the Constitution. Though, no doubt, restrictions can be placed on these rights in the interest of public order, security of the State, etc. but they are not to be lightly transgressed.” 12. The first contention of the petitioner is that there is no application of mind, as the grounds of detention are a verbatim reproduction of the dossier submitted by the police, this clearly reflects a total non-application of mind by the Detaining Authority in passing the order of detention. A careful perusal of the grounds of detention and the impugned order reveals that the satisfaction recorded by the Detaining Authority is mechanical and devoid of independent analysis which has rendered the order of detention unsustainable. WP(Crl) No. 50/2022 13. In this regard, reliance has been placed on the judgment of the Hon’ble Apex Court in “Jai Singh vs. State of J&K”, (1985) 1 SCC 561, relevant portion of which is reproduced as under: "....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." 14. It is submitted that the order of detention has been passed primarily on the basis of the aforementioned five FIRs. However, FIR No. 122/2013 was registered in relation to a private dispute, and the petitioner was acquitted of the charges pursuant to an order dated 25.09.2021 passed by the Special Lok Adalat, on the basis of a compromise entered into between the parties. Similarly, in FIR No. 162/2014, the petitioner was also acquitted of the charges by virtue of an order dated 23.02.2016 passed by the Court of the learned JMIC, Mendhar, again on the basis of a compromise between the parties. So far as FIR No. 136/2017 is concerned, the petitioner submits that the said FIR was not registered against him, and that even in this case, by WP(Crl) No. 50/2022 virtue of order dated 10.04.2018, the accused persons, namely Mohammad Akbar and others, were discharged of the offences alleged. 15. The contention of the petitioner is that these material facts were not taken into consideration by the Detaining Authority while passing the impugned order of detention, which clearly reflects total non-application of mind on the part of the Detaining Authority. Thus, the same has rendered the order of detention illegal and unsustainable in the eyes of law, and the same is liable to be set aside. 16. From the cumulative analysis of the factual background, the legal submissions advanced by the parties, and the binding precedents of the Hon’ble Supreme Court, it clearly emerges that the impugned detention order suffers from multiple legal infirmities. The mechanical reproduction of the police dossier, without any independent application of mind by the Detaining Authority, not only violates the procedural safeguards enshrined in law but also amounts to a serious infraction of the petitioner’s fundamental rights under Article 21 of the Constitution and the fact that the Detaining Authority has not considered all the relevant material before arriving at a subjective satisfaction. 17. Preventive detention, by its very nature, is an exceptional measure which can only be justified by strict adherence to statutory requirements and constitutional protections. The casual and perfunctory manner in which the detention order in the present case has been passed does not withstand judicial scrutiny. 18. In view of the aforesaid reasons, there is no need to advert to other grounds raised in this petition. This petition is allowed and the detention order WP(Crl) No. 50/2022 No. 02/DMP//PSA of 2022 dated 22.08.2022, passed by the District Magistrate, Poonch, is quashed. 19. Detention record be returned to the learned counsel for the respondents by the Registry forthwith. (Sindhu Sharma) Judge Jammu: 09.05.2025 Michal Sharma/PS Whether the judgment is reportable : Yes/No Michal Sharma I attest to the accuracy and authenticity of this document Jammu 28.05.2025 09:37