Quashed

Babbar Khan v. U T of J and K Th Principal Secretary Home Deptt and Others

J&K HC19 Oct 2023WP(Crl)/18/2023

Case brief

AI extract

What is this about?

Petitioner challenged a detention order for maintenance of public order, alleging lack of applied mind, failure to note previous quashed orders, and his bailable status. The High Court quashed the order and directed immediate release.

What did the court decide?

The detention order is quashed and the petitioner is directed to be released forthwith if not required in any other case.

Babbar Khan Vs U T of J and K Th Principal… — Pension and Retirement Benefits | J&K HC (2023)

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Sr. No. 46

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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Pronounced on : 19.10.2023

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Case No. : WP (Crl) No. 18/2023

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Babbar Khan, age 29 years S/o Gh. Nabi Khan R/o H. No. 20 (Bhawani Nagar), Bhagwati Nagar, Jammu Presently lodged in Central Jail Kotbhalwal, Jammu. .....Petitioner(s)

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Through :- Mr. Aseem Sawhney, Advocate with Mr. Sarfraz Ahmad, Advocate.

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UT of J&K through Principal Secretary to Government Home Department, Civil Secretariat, Jammu.

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District Magistrate, Jammu.

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Sr. Superintendent of Police, Jammu. 4. Superintendent of Police, Central Jail, Kot Bhalwal, Jammu. .....Respondent(s)

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Through :- Mr. Pawan Dev Singh Dy.A.G.

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Coram: HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE

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JUDGMENT

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19.10.2023

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The petitioner, Babbar Khan has challenged the order of detention order

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No. 19 of 2022 dated 24.11.2022, passed by the respondent No.2, mainly on the ground that the same has been issued without application of mind; that the petitioner was not explained the documents in the language he understood; that the detention order earlier passed by the respondents was quashed by this Court in the petition filed by the

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WP (Crl) No. 18/2023

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petitioner and there is no mention of the same in the detention order; that the petitioner is on bail in the FIR in question and the respondents could have applied for cancellation of the bail but did not choose to do so. The petitioner could not make proper representation in view of the fact that the contents of the order were not made to understand and the material was also not supplied.

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The respondents have appeared and filed counter to the petition wherein it is submitted that the detention order has been passed on the basis of subjective satisfaction by the respondent No.2; that the earlier action taken against the petitioner did not deter him from indulging in criminal activities; that the respondents have complied with all the formalities which were required to be observed by the respondents while passing the detention order; that the respondents have made the petitioner to understand the grounds of detention in the language he understood. The respondents seek dismissal of the petition.

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The detention record has been produced by the learned Deputy Advocate General.

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Heard learned counsel for both the sides.

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The detention order has been purportedly passed for maintenance of public order.

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The detention order mentions of ten FIRs registered with different Police Stations, the last one being registered in November, 2022 with Police Station, Nowabad under Sections 332 & 353 IPC read with 4/25 Arms Act. The detention order though passed on 24.11.2022 was executed on 07.02.2023 and the petitioner was lodged in Central Jail, Kot Bhalwal, Jammu. Nothing is forthcoming from the record as to why

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3 WP (Crl) No. 18/2023

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so much of time was taken by the respondents for execution of the warrant. No explanation is given in the objections filed by the respondents.

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Learned counsel for the petitioner has brought to the notice of the court the judgment of the Division Bench of this Court passed in LPA No. 129/2021 wherein the detention order earlier passed against the petitioner vide No. 05 of 2021 dated 05.05.2021 was quashed.

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The detention order in question does not reveal of the earlier detention order passed against the petitioner and its quashment in LPA by the Division Bench. The record also reveals of detention order passed against the petitioner in the year 2018 and the same being quashed by the court in the petition filed by the petitioner. The same should have found mention in the detention order questioned in the present petition. Why this relevant fact was not been mentioned in the detention order is best known to the respondent No.2. The petitioner was on bail in the last FIR mentioned in the detention order that is 136 of 2022 registered with Police Station, Nowabad but again this fact is not mentioned in the detention order. This also speaks of non-application of mind of the detaining authority while passing the order. The detention order cannot be passed against the person as a matter of routine but only after taking into consideration all the circumstances and also mentioning the same in the detention order so that the person is not deprived of all the material facts which should have found mention in the detention order.

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The petitioner could be proceeded by the authorities without invoking the detention order. It is trite proposition of law that where the authority could proceed against the person through ordinary law then the

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4 WP (Crl) No. 18/2023

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detention order need not be invoked and pressed into service by the concerned authority.

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The preventive detention is a measure not to punish the person but to prevent some anticipated action of the person against whom the detention order is passed. The liberty of the person gets compromised wherein the detention order is passed on the grounds which cannot be said to be germane for the purpose for which it is passed and the order of detention is prima facie not passed on well settled principles.

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The detention order is required to be quashed on the aforesaid grounds itself.

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The contention raised in the petition that the material was not supplied to him or that the petitioner was not made to understand the material provided to him while executing the warrant of detention cannot be accepted. The execution report meets the argument of the petitioner itself, the petitioner being signatory to the aforesaid circumstance.

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In the light of the aforesaid discussion, the detention order, impugned in the present petition, is quashed and the petitioner is directed to be released forthwith if not required in any other case.

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The record be returned back to the learned Deputy Advocate General.

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(PUNEET GUPTA)

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JUDGE

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Jammu : 19.10.2023

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Pawan Chopra

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Whether the Judgment is speaking : Yes/No Whether the Judgment is reportable: Yes/No

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PAWAN CHOPRA 2023.10.19 15:57 I attest to the accuracy and integrity of this document

Babbar Khan v. U T of J and K Th Principal Secretary Home Deptt and Others

Case brief

What is this about?

What did the court decide?

Babbar Khan v. U T of J and K Th Principal Secretary Home Deptt and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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