Offences Alleged Against A Person Must Fall Within Realm Of Disturbing "Public Order" To Warrant Preventive Detention: J&K&L High Court Reiterates

The Jammu and Kashmir and Ladakh High Court on Wednesday reiterated that a detention order passed by a competent authority under Sec 8(1) of J&K Public Safety Act on the ground of disturbance of law & order situation is not sustainable in law as the said provision clearly prescribes "prejudicial to Public order" as a ground to issue detention orders. The bench comprising Justice Rajneesh Oswal was hearing a habeas corpus petition wherein the detenue had challenged his detention on the ground that the detaining authority has passed the order impugned without application of mind as there was no material placed along with the recommendation of the Sr. Superintendent of Police, Jammu for detention of the petitioner. Contesting the petition, the UT administration argued that the petitioner is a hard-core criminal and his criminal record reveals his addiction to heinous crimes of stabbing, drug dealing, buying and selling illegal liquor etc. The activities of the petitioner are very prejudicial to the maintenance of public order and warrants immediate preventive measures, the UT counsel argued. Counsel for the UT administration further argued that the petitioner is a history sheeter of Police Station, Gandhi Nagar, whose history sheet was opened on 25.11.2019 and thereafter, he was under constant surveillance, as he has close links with other notorious criminals. He further informed the court about pending FIR's under Section 8/21/22 of NDPS Act, 48F/Excise Act, section 188, 269, 270 of IPC, 48-A/50 Excise Act at several police stations in Jammu and since ordinary law has not proved adequate in order to deter the petitioner from indulging in repeated illegal acts, as such, detention order was passed. Countering the allegations the counsel for the petitioner vehemently submitted that there has been complete non application of mind by the detaining authority in the case as the petitioner could not have been detained on the pretext of maintenance of public order as the FIRs registered against the petitioner, nowhere demonstrate that the petitioner at any point of time has disturbed the public order. While dealing with the controversy as to whether on the basis of FIRs mentioned above, it can be said that the detention of the petitioner was necessary for maintenance of public order, the bench observed that section 8 (1) of the Jammu and Kashmir Public Safety Act is sufficiently clear that the government may detain any person if it is satisfied that the detention is necessary with a view to prevent such person from acting in any manner prejudicial to the maintenance of public order, and nowhere does it mention Law & order as a ground for detention. The bench further observed that a person may be detained under preventive detention laws provided the case falls within the parameters of law laid down under the Act and the perusal of detention order reveals that in all the FIRs, the allegations against the petitioner are with regard to the commission of offences those do not fall within the realm of "public order" as defined by section 8(3) of the Act as there are no allegations against the petitioner regarding his activities affecting public at large. The allegations may amount to law and order issue but in no manner can be said to have disturbed the public order, the bench noted. Delibrating further the bench found it worthwhile to record the observations of supreme court in Mallada K Sri Ram v. State of Telangana, wherein the Apex Court has considered the distinction between "law and order" and "public order" and observed.. "Does the expression "public order" take in every kind of disorders or only some of them? The answer to this serves to distinguish "public order" from "law and order" because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder. When two drunkards 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. The contravention of law always affects order but before if 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 thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are". Dealing with the argument of the petitioner that the order is not sustainable on as the order of detention is the verbatim reproduction of the Dossier submitted by the SSP to the competent authority the bench recorded that the detaining authority was required to apply its mind independently with regard to the material placed before it so as to derive satisfaction that it has become necessary to detain the petitioner, but ...

Offences Alleged Against A Person Must Fall Within Realm Of Disturbing "Public Order" To Warrant Preventive Detention: J&K&L High Court Reiterates

Basit Amin Makhdoomi

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