Pawan Kumar vs Union Territory Of Jammu And Kashmir And Others

Rajnesh Oswal, J

Aggrieved by his preventive detention vide order dated 06th/DM/K/PSA of 2023 dated 04.09.2023 issued under section 8(2) of the J&K Public Safety Act, 1978 (for short „the Act‟), by the respondent No. 2, the petitioner has filed the present petition through his wife for quashing of the same on the following grounds:

(a) That there is a delay in passing the order of detention, which is evident from the order of detention itself, as the same was passed on 04.09.2023, whereas the last FIR was registered against the petitioner on 15.11.2022, as such, there is a delay of more than 10 months in passing the order of detention.

(b) That the Detaining Authority while passing the order of detention, has not recorded its subjective satisfaction as to why ordinary law has not been able to curtail the activities of the petitioner.

(c) That the activities of the petitioner do not fall within the definition of activities prejudicial to the maintenance of public order as explained under section 8(3) of the Act, which clearly reflects that the Detaining Authority has not followed the Act properly.

(d) That the petitioner has read only up to 6th standard and does not know English, Urdu and Hindu languages. The respondents were under obligation to explain the order of detention and other material to the petitioner in the language he fully understands.

(e) That most of the material supplied to the petitioner was in English language and some documents in Urdu and both these languages are not understandable to the petitioner, as he understands only Pahari language.

(f) That the respondents have not informed the petitioner that he can make a representation to the Detaining Authority as well as to the Government.

The respondents have filed the counter affidavit, stating therein that the petitioner was involved in FIR No. 189/2019 and FIR No. 276/2022 both under Section 48-A Excise Act, registered with the Police Station, Kishtwar but every time after getting bail, he resumed his anti-social/criminal activities without any respect for law and order. The sponsoring Agency i.e. respondent No. 3 submitted the dossier to respondent No. 2 along with record and the respondent No. 2 in exercise of power conferred under section 8(2) of the Act issued the order of detention on 04.09.2023 against the petitioner. The order of detention was duly executed by PSI Anil Kumar, Police Station, Kishtwar on 10.09.2023 and the petitioner was informed that he can make representation against his detention to the Detaining Authority as well as to the Government. Besides, the order of detention was handed over to the detenue and read over to him in English and explained to him in Urdu/Kashmiri languages, which he fully understands. The petitioner has also been provided the order of detention (2 leaves), grounds of detention (01 leaf), Dossier and other related documents (27 leaves) (total 30 leaves) in presence of the witnesses. The order of detention was subsequently confirmed by the Government after obtaining the opinion of the Advisory Board vide order dated 03.10.2023.

Learned counsel for the petitioner has vehemently argued that the petitioner could not have been detained on the stale grounds and the material relied upon by the Detaining Authority was not provided to the petitioner and also the same was not read over to him in the Pahari language as the petitioner understands only Pahari language.

Learned Government Advocate appearing for the respondents has vehemently argued that after taking note that the activities of the detenue are prejudicial to the maintenance of the public order, the respondent No.2 issued the order of detention. He has further submitted that the petitioner was provided with all the documents relied upon by the Detaining Authority while issuing the order of detention i.e. the order of detention, grounds of detention and other related documents and explained to him in the language he fully understood.

Heard and perused the record.

Order of detention dated 04.09.2023 has been issued by respondent No. 2 on the ground that the activities of the petitioner have been found to be prejudicial to the maintenance of public order. Pursuant to the dossier submitted by the sponsoring agency i.e. respondent No. 3 herein, respondent No. 2 has prepared the grounds of detention. In the grounds of detention, the respondent No. 2 has mentioned that the petitioner is accused in two FIRs i.e. FIR No. 189/2019 under section 48-A Excise Act of Police Station, Kishtwar and FIR No. 276/2022 under section 48-A of Excise Act of Police Station, Kishtwar. The last illegal activity attributed to the petitioner is in respect of FIR No. 276/2022 for offence under section 48-A of the Excise Act of Police Station, Kishtwar registered on 15.11.2022 against the petitioner and his wife for indulging in manufacturing of Desi Wine illegally. The order of detention in this regard was passed on 04.09.2023.

Thus, there is a gap of 10 months in passing the order of detention.The delay in passing the detention order renders the same illegal. Reliance is placed upon the decision of the Apex Court in “Laxhman Khatik vs State of Bengal”, 1974 (4) SCC 1, wherein while considering the detention order under the maintenance of Maintenance of Internal Security Act, 1971, it has been held that prompt action in such matter should be taken as soon as the incidents like those, which are referred to in the grounds, have taken place. It is also profitable to take note of the judgment of the Apex Court in case titled, “Saeed Zakir Hussain Malik vs State of Maharashtra”, reported in (2012) 8 SCC 233. Relevant paragraph Nos. 27 and 28 read as under:

"27) As regards the second contention, as rightly pointed out by learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the 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. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned.

28) It is also the duty of the court to investigate whether casual connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on detenu, there is no need to go into the factual details."

Further this Court finds that once there were allegations for commission of offence under section 48-A of the Excise Act, then respondent No. 2 ought to have passed the order under section 8(1)(a-1) of the Act, so as to prevent the petitioner from indulging in smuggling of the liquor. This Court has already considered this issue in „Pawan Singh aliasPanna vs Union Territory of J&K and others’, HCP No. 50/2023, date of decision dated 17.05.2024 and has held as under:

“Section 8(3)(b) of the PSA prescribes the activities, which are considered prejudicial to the maintenance of public order. Section 8(3(c) defines “smuggling” in relation to timber or liquor means possessing or carrying of illicit timber or liquor and includes any act, which will render the timber or liquor liable to confiscation under the Jammu and Kashmir Forest Act or under the Jammu and Kashmir Excise Act as the case may be.

Thus, Sections 8(3) (b) and 8(3)(c) of the PSA define the activities prejudicial to the maintenance of the public order and expression “smuggling” as used in Sections 8(1)(a) and 8 (1)(a-

1) of the Act respectively. The smuggling of liquor or possession thereof, does not fall within the category of activities as defined in terms of Section 8(3)(b) of the Act considered prejudicial to the maintenance of the public order.”

Thus, the impugned order of detention could not have passed by the Detaining Authority for the maintenance of public order, as if the order was required to be passed then, it should have been passed under section 8(1)(a-i) of the Act.

Viewed thus, the impugned order of detention is not sustainable in law. As such, this petition is allowed and the impugned order of detention dated 04.09.2023 issued by the District Magistrate, Kishtwar-respondent No. 2 is quashed. The petitioner be released forthwith from preventive custody, provided he is not required in any other case.

The detention record, as produced, be returned to the Government Advocate.