Offenses alleged against a person must fall within the realm of disturbing public order to warrant preventive detention: J&K&L High Court reiterates


The High Court of Jammu and Kashmir and Ladakh reiterated on Wednesday that a detention order issued by a competent authority under Section 8(1) of the J&K Public Security Act for causing disturbance to public order is not viable in law as the said provision clearly prescribes “prejudice to public order” as a ground for issuing detention orders.

The bench comprising Judge Rajneesh Oswal was hearing a habeas corpus petition in which the detainee challenged his detention on the grounds that the detaining authority had issued the contested order without application of spirit as no document had been placed with the recommendation of the Chief Superintendent of Police of Jammu for the applicant’s detention.

Disputing the petition, the UT administration argued that the petitioner is a hardened criminal and that his criminal record reveals his addiction to the heinous crimes of stabbing, drug dealing, buying and selling drugs. illegal alcohol, etc. The petitioner’s activities are highly detrimental to the maintenance of public order and warrant immediate preventive action, argued UT’s attorney.

The UT administration lawyer further submitted that the petitioner is a history sheet of the police station, Gandhi Nagar, whose history sheet was opened on 25.11.2019 and thereafter , he was under constant surveillance, as he has close ties to other notorious criminals. He further advised the court of pending FIRs under NDPS Section 8/21/22, 48F/Excise Act, IPC Sections 188, 269, 270, 48-A/50 Excise Act in several police stations in Jammu and since ordinary law did not prove sufficient to deter the petitioner from engaging in repeated unlawful acts, as such, a detention order was issued.

Against the allegations, the applicant’s lawyer argued vehemently that there had been a complete lack of spirit on the part of the detaining authority in the case, as the applicant could not have been detained on the pretext maintenance of public order, as recorded by the FIRs, nowhere demonstrates that the Claimant at any time disturbed the public order.

While dealing with the controversy as to whether, on the basis of the FIRs mentioned above, it can be said that the applicant’s detention was necessary for the maintenance of public order, the panel observed that Article 8 (1 ) of Jammu and Kashmir Public Safety The law is sufficiently clear that the government can detain any person if it is satisfied that the detention is necessary in order to prevent that person from acting in a way detrimental to the maintenance of law and order public, and nowhere does it mention law and order as grounds for detention.

The bench further observed that a person may be detained under the remand laws provided the case falls within the parameters of the law established under the law and a reading of the detention order reveals that in all the FIRs, the allegations against the applicant relate to the commission of offenses which do not fall within the scope of “public order” as defined by Article 8 (3) of the law, because there is no has no allegations against the petitioner regarding his activities affecting the general public. The allegations may constitute a problem of public order, but in no way can they be said to have disturbed public order, the bench noted.

Deliberating further, the bench saw fit to record the observations of the Supreme Court in Mallada K Sri Ram v. State of Telangana, in which the Supreme Court considered the distinction between “law and order” and “public order” and observed..

Does the expression “public order” cover all kinds of disorders or only some of them? The answer to this distinguishes “public order” from “public order” because the latter presumably encompasses them all. Public order, if disturbed, must lead to public disorder. Any breach of the peace does not result in public disorder. When two drunks quarrel and fight, there is disorder but not public disorder. They can be dealt with under public order powers, but cannot be detained on the grounds that they have disturbed public order.

Breaking the law always affects order, but before it can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is therefore not necessarily sufficient for action under the Defense Act of India, but disturbances which upset public order are“.

Addressing the petitioner’s argument that the order is not viable because the detention order is the verbatim reproduction of the file submitted by the SSP to the competent authority, the panel noted that the detaining authority was bound to exercise independence of mind with regard to the documents presented to him in order to obtain the satisfaction that it became necessary to detain the applicant, but the same was not done in the case present and his also violates the J&K Public Safety Act.

Permitting the petition, the court quashed the detention order issued by the Jammu District Magistrate and ordered that the petitioner (detainee) be released from preventive detention, provided that his detention is not required in any other case.

Case title: Kamaljeet Singh Vs UT of J&K and Ors.

Click here to read/download the judgment


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