1 HCP no.151/2024 HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR HCP No.151/2024 Reserved on: 02.01.2025 Pronounced on: 19.02.2025 Aijaz Ahmad Mir @ Molvi, aged 30 S/o Ghulam Hassan Mir, R/o Logripora Bomai Zaingeer Sopore , Baramulla ……. 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.29/DMB/PSA/2024 dated 16.04.2024, passed by District Magistrate, Baramulla – respondent no.2, whereby detenu, namely, Aijaz Ahmad Mir @ Molvi S/o Ghulam Hassan Mir R/o Logripora, Bomai, Zaingeer, Sopore , 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 the allegations have been meticulously linked to the detenu‟s involvement, based on concrete evidence and investigative findings, 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 2 HCP no.151/2024 upon by the detaining authority, was provided to the detenu at the time of execution of warrant. 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.109/2021 and 163/2021 under Section 307, 147 , 148, 149, 336 IPC registered in Police Station Sopore and there is no proximate and live link between the allegations levelled against the detenu in terms of the aforesaid FIRs and the grounds of detention; 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 are prejudicial 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. 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. 5. As already noted, learned counsel for detenu contends that detaining 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 mentioned that “activities are highly prejudicial to the maintenance 3 HCP no.151/2024 of public order” and at another place, “activities of the detenu are highly prejudicial to the maintenance of security of UT of J&K”. 6. 6. 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 to A. 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 ask is: “Does it lead to disturbance of the current life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquility of the society undisturbed”? This question has to be faced in every case on its facts. The “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 4 HCP no.151/2024 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. 7. 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. 8. 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. 9. 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 5 HCP no.151/2024 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 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. 10. 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”. 11. 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”. 12. 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. 13. The question whether the prejudicial activities of a person requiring to pass a detention order is proximate to time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped, depends on the facts and circumstances of each case. Nonetheless, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the casual connection has been broken in the circumstances of each case. Certainly, in the present case, there is no cogent explanation coming to fore from perusal of the grounds of detention with reference 6 HCP no.151/2024 to the live-link between the prejudicial activities and the purpose of the detention and resultantly, the impugned detention order is liable to be quashed. In this regard reference is made to the law laid down in T. A. Abdul Rahman v. State of Kerala (1989) 4 SCC 741 and Rajinder Arora v. Union of India and others (2006) 4 SCC 796. 14. There is substance in the submission of counsel for petitioner that there is no live link between the last activity and impugned detention order because FIR nos. 109/2021 and 163/2021 have been taken into account by detaining authority while passing order impugned, oblivious of the fact that there is no fresh further prejudicial activities alleged against detenu. Resultantly, impugned order of detention is liable to be quashed. 15. For the reasons discussed above, detention Order No.29/DMB/PSA/ 2024 dated 16.04.2024, 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. 16. Disposed of. 17. Detention record be returned to counsel for respondents. (Vinod Chatterji Koul) Judge SRINAGAR 19.02.2025 (Qazi Amjad,Secy) Whether the order is reportable: No. QAZI AMJAD YOUSUF I attest to the accuracy and authenticity of this document Srinagar 24.02.2025 14:39