Jammu & Kashmir and Ladakh High Court: The instant writ petition was filed seeking to quash the impugned order of detention issued by the District Magistrate, Jammu. The bench of Rajnesh Oswal, J* opined that the issuance of detention order due to non-application of mind on part of the detaining authority is the sole ground for quashing the order. The Court further stated that once the statute provides for detention of the person under specific contingency, he cannot be detained under other contingency envisaged by the statute, unless both overlap or co-exist together.
BACKGROUND
The petitioner was aggrieved of the detention order dated 28-06-2023 issued by District Magistrate, Jammu under Section 8 (1) (a) of Jammu and Kashmir Public Safety Act, 1978 (PSA) and challenged the detention order by filing the instant petition.
The District Magistrate (Respondent No 2) acting upon the dossier prepared by the Sponsoring Agency (Respondent No 3) and considering of five FIRs registered against the petitioner under the Excise Act, issued the impugned detention order under Section 8(1)(a) of Jammu and Kashmir Public Safety Act for the maintenance of public order.
The Petitioner contented that the impugned detention order suffers from non-application of mind, has been issued in a mechanical and an arbitrary manner. The Petitioner further stated, he could not have been detained under the PSA for the maintenance of public order particularly on the allegations levelled against him.
The respondents on the contrary stated that the petitioner was a notorious bootlegger and habitual criminal with seven FIRs registered against him, and that his activities were prejudicial to the maintenance of public order, therefore, he was detained. The respondents submitted that the petitioner was furnished with all the relevant material pertaining to the detention order.
DECISION & ANALYSIS
Perusing the matter, the Court found that the impugned order has been purportedly issued “for maintenance of public order” and not in order to prevent the petitioner from smuggling the liquor. The PSA contemplates detention of the person if he is involved in smuggling of liquor, as defined under the PSA and the definition of “smuggling” is wide enough to include any infraction of the Excise Act which renders the liquor liable for confiscation.
The Court pointed out that the petitioner could have been detained only under Section 8 (1)(a-1) of the PSA and not under Section 8(1)(a) of the PSA, as both the clauses (a) and (a-1) operate in different fields- the former operates in cases of activities prejudicial to the maintenance of public order and the latter in case of smuggling liquor or timber.
The Court also emphasised that where a statute provides for detention of the person under specific contingency, he cannot be detained under other contingency envisaged by the statute, unless both overlap or co-exist together.
Furthermore, the Court opined that the allegations against the petitioner are in respect of indulging in the illicit trade of liquor and for getting undue benefit and such allegations cannot be termed as prejudicial to the maintenance of public order.
The Court pointed out that the issuance of the impugned order under Section 8(1)(a) of the PSA by the District Magistrate for maintenance of public order is a classic example of non-application of mind on the part of the detaining authority and therefore, the order as it is cannot be sustained in the eyes of law.
Subsequently, the Court with thorough examination of all the pertinent facts related to instant case quashed the detention order dated 28-06-2023 issued by the District Magistrate, Jammu and allowed the petition and directed the release of the petitioner from preventive custody.
[Pawan Singh v. State (UT of J&K), 2024 SCC OnLine J&K 356, decided on 17-05-2024]
*Judgment by Justice Rajnesh Oswal
Advocates who appeared in this case :
For the Petitioner: VIRENDER DEV SINGH, ADVOCATES
For the Respondents: PAWAN DEV SINGH, Dy AG
