The Jammu & Kashmir & Ladakh High Court, while quashing a detention order under J&K Public Safety Act, recently ruled that acts of land grabbing do not fall within the purview of the activities prejudicial to the maintenance of public order as per the provisions of the Jammu and Kashmir Public Safety Act, 1978.
The observations were made by a bench of Justice Rajnesh Oswal while considering a petition challenging a detention order passed by District Magistrate, Jammu whereby the petitioner was detained under the provisions of the Jammu and Kashmir Public Safety Act, 1978.
The petitioner primarily challenged his detention order on the ground that the activities considered to be prejudicial to the maintenance of public order by the prosecution, do not fall within the purview of the Section 8(3)(b) of the Act.
Opposing the plea, Additional Advocate General Amit Gupta submitted that the petitioner was involved in numerous criminal activities which are considered prejudicial to maintenance of public order. A total of 21 FIRs have been registered against him since 2006, the court was told.
The State also contested the plea by arguing that the petitioner is a notorious land grabber and because of such criminal activities, there was threat to the maintenance of public order, necessitating the issuance of order of detention against the petitioner.
Adjudicating upon the matter in issue Justice Rajnesh Oswal referred to the Supreme Court's decision in KK Saravana Babu v State of Tamil Nadu, to hold that land grabbing cannot be construed to affect public order as defined under Section 8 (3)(b) of the Act.
"In view of the decision of Apex Court, the argument ... that land grabbing would fall within the meaning of "mischief" loses its force. Thus, this Court is of the considered view that the alleged activities as mentioned above, even if are considered as true, still the said activities do not fall within the purview of the activities prejudicial to the maintenance of public order as defined in 8 (3)(b) of the Act," Justice Oswal said.
The Court also stressed that in a democracy such as India, the personal liberty of the individual cannot be curtailed except according to the procedure established by law.
"If the law provides for curtailment of personal liberty under certain contingencies/conditions, then such conditions/contingencies must exist, then only, the personal liberty of an individual can be curtailed and that too according to the procedure prescribed by the law. The perusal of detention order reveals that in all the FIRs, the allegations against the petitioner are with regard to the commission of offences, which 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 bench explained in its judgement.
On going through the provisions of the Act, the materials on record and the facts of the case, the High Court said that the allegations against the petitioner may amount to law and order issue but in no manner can be said to have disturbed "public order" as defined under the Act.
The Court further said that the perusal of detention order revealed that in all the FIRs, the allegations against the petitioner were with regard to the commission of offences, which 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 the public at large.
It also said the FIRs ranging from the year 2006 till 2019 could not have formed the basis for issuance of the detention order being remote in nature.
Therefore, the Court allowed the petition and quashed the detention order.