J&K HC: Squashes the detention order passed only at the behest of

police. Says, “Power to detain is not a power to punish for offences”.

Brief Facts of the case:

J&K High court on 19th March 2020 in the case of Bunny Gupta vs. State of Jammu And
Kashmir squashes the detention order passed only at the behest of police. The detention of the
petitioner ordered by the District Magistrate, Jammu vide its Order No.03 of 2019 dated
15.04.2019 is subject matter of challenge in this petition. The District Magistrate, Jammu, in
exercise of powers conferred by Section 8(1)(a) of the J&K Public Safety Act, 1978, has directed
detention of the petitioner in the Central Jail, Kote Bhalwal, Jammu with a view to prevent him
from acting in any manner prejudicial to the maintenance of public order. The detention has
been WP(Crl) 35/2019 ordered by the District Magistrate, Jammu inter alia on the ground that
the petitioner is a notorious/habitual hard-core criminal having been involved in series of
criminal cases regarding which as many as 07 FIRs in the Police Stations of R.S.Pura, Akhnoor
and Miran Sahib have been registered.

Arguments from Petitioner’s Side:

The Petitioner has called in question the order of detention primarily on the following grounds:-

(i) That the detaining authority has not communicated the Petitioner the grounds of detention nor
was he ever made to understand the accusations and the allegations contained in the grounds on
the basis of which his detention has been ordered.

(ii) That the detention order has been executed by one Sub Inspector Shakeel Ahmed and there is
no certificate on oath given by the aforesaid Officer whereby it could be established that the
grounds of detention were explained to the Petitioner in the language he understands.
(iii) That the relevant material, particularly, the police dossier, which was relied upon by the
detaining authority for issuing the order of detention was never supplied to the Petitioner.

(iv) That the grounds of detention are totally irrelevant and vague and do not constitute sufficient
material on the basis of which the detaining authority could derived the satisfaction with regard
to the necessity of placing the Petitioner under detention.

(v) That the detention order earlier passed by the detaining authority on the same grounds was
quashed by this Court in HCP No.36/2018 and therefore, there was no new material to put the
Petitioner under detention. The detention on the self-same grounds is, thus, not sustainable.

(vi) That the order impugned also suffers from non-application of mind.

(vii) That the impugned order passed by the District Magistrate which was required to be
mandatorily approved by the Government within 12 days from the date of its passing, has not
been approved by the Government and therefore, further detention of the Petitioner pursuant to
the impugned detention order is bad in the eyes of law.

Arguments from Defendant’s Side:

The detaining authority, on the basis of the material before it, arrived at satisfaction that given
the nature of activities, the Petitioner has been indulging in, consistently over a period of time, it
is necessary to place him under the preventive detention with a view to prevent him from acting
in any manner prejudicial to the maintenance of public order. It is on the basis of these grounds,
the requisite satisfaction appears to have been arrived by the detaining authority with regard to
the necessity to put the Petitioner under detention.

The detaining authority has given the details of the criminal cases registered against the
Petitioner and nature of involvement of the Petitioner. On the basis of the material supplied by
the Police in the form of a dossier, the detaining authority has concluded that the Petitioner is an
incorrigible and dreadful criminal, who has caused mayhem in bringing about instability in
public order.
Court’s Decision:

HON'BLE MR JUSTICE SANJEEV KUMAR said - “Having heard learned counsel for the
parties and gone through the pleadings, I am of the view that the order of detention impugned in
this petition is liable to be quashed on the solitary ground that despite number of grounds
specifically raised by the Petitioner in his petition, the detaining authority has chosen not to file
any affidavit in rebuttal. The Senior Superintendent of Police, Jammu who might have supplied
the requisite material in the shape of the dossier to the detaining authority is not a person
competent to depose on behalf of the detaining authority”.

The court further added that the impugned order, which is primarily based on the solitary fact
that the petitioner is a habitual offender and is involved in several criminal cases is bad in the
eyes of law and clearly falls foul of Article 22 of the Constitution of India.

Justice Sanjeev Kumar said, “It is not only surprising, but, shocking to note that the District
Magistrate, Jammu, who while passing the impugned order of detention, which resulted in
curtailing the liberty of the Petitioner, has WP(Crl) 35/2019 conveniently shifted the burden of
defending its order on the Senior Superintendent of Police”.

The Court finally allows this petition and quash the order of detention impugned in this petition.
The respondents are directed to release the Petitioner forthwith, provided he is not required in
any other case.