Allowed

Ghulam Rasool Alias Ghulami Th Gafoor v. U T of J and K Th Commissioner Secretary Home Deptt and Others

J&K HC14 Oct 2024HCP/5/2024

Case brief

AI extract

What is this about?

A bail petitioner challenged a preventive detention order under the J&K Public Safety Act, alleging total non-application of mind by the detaining authority for ignoring bail grants and closed charges. The court applied precedent and quashed the order.

What did the court decide?

Impugned detention Order No. PSA 33 of 2023 dated 28.11.2023 was quashed and detained was released forthwith.

Ghulam Rasool Alias Ghulami Th Gafoor Vs U… — Constitutional and Fundamental Rights | J&K HC (2024)

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HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

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HCP No. 05/2024

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Pronounced on: 14.10.2024

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Ghulam Rasool alias Ghulami, Age 61 years, S/o Shakur Din R/o Nardka Panjgrain, Tehsil Nagrota, District Jammu (Through his son-Gafoor, Age 25 years, S/o Ghulam Rasool alias Ghulami, R/o Nardka Panjgrain, Tehsil Nagrota, District Jammu)

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…. Petitioner/Appellant(s)

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Through:Mr. Altaf Hussain Janjua, Advocate.

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V/s

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1. UT of J&K, through Commissioner/Secretary, Home Department, Civil Sectt., Jammu/Srinagar

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…..Respondent(s)

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2. District Magistrate, Jammu.

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3. Sr. Superintendent of Police, Jammu

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4. Superintendent, Central Jail, Kot Bhalwal, Jammu

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Through:Mr. Pawan Dev Singh, Dy. AG.

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CORAM: HON‟BLE MRS. JUSTICE SINDHU SHARMA, JUDGE JUDGMENT

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The petitioner, through his son, has challenged the Order No. PSA 33 of 2023, dated 28.11.2023, whereby the District Magistrate, Jammu, has placed him under detention with a view to prevent him from acting IN any manner prejudicial to the maintenance of public order.

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The impugned detention order has been assailed by the detenue on the ground that the same suffers from total non-application of mind, as the grounds of detention are verbatim of the dossier submitted by the Senior Superintendent of Police, Jammu. The petitioner argues that the detention

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HCP No. 05/2024

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Page 2 of 6

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order cites his involvement in several FIRs, all registered with Police Station Nagrota, Jammu, including: FIR No. 64/2024 under Sections 392/354 RPC; FIR No. 161/2010 under Sections 341/323/34 RPC; FIR No. 223/2011 under Sections 341/332/34 RPC; FIR No. 192/2013 under Sections 341/323 RPC; FIR No. 252/2013 under Sections 341/323/34 RPC; FIR No. 276/2015 under Sections 452/341/323/147/504/506/382 RPC; and FIR No. 194/2023 under Sections 382/354/323/34 RPC.

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It is further submitted by the detenue that the Detaining Authority has not shown any awareness to the fact that in FIR No. 161/2010 registered under Sections 341/323/34 RPC and FIR No. 252/2013 registered under Sections 341/323/34 RPC, the Challan presented in these FIRs have been dismissed in view of the compromise arrived between the detenue and the complainant. The detenue was admitted to bail in FIR No. 64/2024, FIR No. 223/2011, FIR No. 192/2013, FIR No. 276/2015 and FIR No. 194/2023. This fact has not been reflected in the order of detention, which shows that there is total non-application of mind and the Detaining Authority was not aware of the facts before passing the order of detention.

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The detenue further submits that all material relied upon by the Detaining Authority, including copies of FIRs, site plans, recovery memos, and statements of witnesses recorded under Section 161 CrPC, has not been supplied to him. As a result, the detenue was prevented from making an effective representation to the Detaining Authority as well as to the Government. The order of detention is, thus, illegal and ought to be quashed. 05. The respondents have filed their counter affidavit as well as produced the relevant record.

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HCP No. 05/2024

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Page 3 of 6

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The respondents submit that the petitioner is a hardcore criminal, a desperate character, and a history-sheeter who habitually engages in acts of violence, including molestation, burglary, land-grabbing, and other criminal activities. It is further stated that, by virtue of his continuous involvement in criminal activities, the detenue has instilled a reign of terror among the peace-loving people of the area, and his actions are prejudicial to the maintenance of public order. The respondents also contend that all the statutory constitutional safeguards have been adhered to by the Detaining Authority while passing the order of detention. The impugned order of detention is, therefore, legal and valid. The respondents’ counsel has submitted that the grounds raised in this petition are misconceived and devoid of merit.

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Heard learned counsel for the parties and also perused the record. 08. The first ground argued by the learned counsel for the detenue is that the Detaining Authority, while passing the order of detention, failed to take into account the fact that the detenue was granted bail in FIR No. 64/2024, FIR No. 223/2011, FIR No. 192/2013, FIR No. 276/2015 and FIR No. 194/2023. The order of detention has been passed on the basis of aforesaid FIRs, without mentioning this important fact in grounds of detention which exhibits total non-application of mind on the part of detaining authority. This also reflects that detaining authority has not meticulously examined the material record available before him while passing the impugned order of detention which renders the same unsustainable in law.

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HCP No. 05/2024

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Page 4 of 6

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The Detaining Authority has also relied on two FIRs, i.e., FIR No. 161/2010 under Sections 341/323/34 RPC and FIR No. 252/2013 under Sections 341/323/34 RPC, while passing the order of detention but has not shown any awareness regarding the fact that the Challan proceedings in both these FIRs were closed. This reflects that the order has been passed by the Detaining Authority in a perfunctory manner without considering all the relevant facts before arriving at a subjective satisfaction regarding the necessity of detention.

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In „Haroon Majid vs. State of J&K and another‟, 2005 (11) SLJ , this Court has observed as under:

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“The detaining authority must show awareness by application of mind particularly to the facts of the case while directing preventive detention as by his action the liberty of a citizen is curtailed. The law enjoins upon the detaining authority to be alive to all facts and circumstances of the case and on application of mind to all those facts and circumstances, the detaining authority has to be subjectively satisfied that the detenu is required to be put in preventive detention. In case all the facts are not brought before the detaining authority or the detaining authority is not aware of all the facts and circumstances, and without considering it, derives subjective satisfaction, it amounts to non-application of mind which is a patent incurable defect to sustain the detention order.”

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Similar issue also been considered by the Hon’ble Apex Court in

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case titled “Anant Sakharam Raut vs. State of Maharashtra and another” reported in AIR 1987 SC 137 , which has been held in paragraph 8 as under: -

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"5. We do not think it necessary to go into all the grounds urged before us by the petitioner's counsel in support of his prayer to quash the order of detention. The one contention strongly pressed before us by the petitioner's counsel is that the detaining authority was not made

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HCP No. 05/2024

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Page 5 of 6

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aware at the time the detention order was made that the detenu had moved applications for fail in the three pending cases and that he was enlarged on bail on 13-1-1986, 14-1-1986 and 15-1-1986. We have gone through the detention order carefully. There is absolutely no mention in the order about the fact that the petitioner was an under-trial prisoner, that he was arrested in connection with the three cases, that applications for bail were pending and that he was released on three successive days in the three cases. This indicates a total absence of application of mind on the part of detaining authority while passing the order of detention."

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The Detaining Authority, while passing the order of detention, has passed the order on the premise that the detenue’s activities were prejudicial to the maintenance of public order, peace, and the integrity of the Union Territory. The Detaining Authority appears uncertain as to whether the detenue poses a threat to public order or to the security of the State, as the provisions under the J&K Public Safety Act are distinct in addressing these two separate grounds for preventive detention. The order of detention is, thus, passed without any application of mind.

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In light of the law laid down in the aforementioned cases and applying the same to the facts of this case, it is clear that the detention order is unsustainable.

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Keeping in view the aforesaid discussion and without adverting to other grounds raised by the detenue in this petition. This petition is allowed and impugned detention order No. PSA 33 of 2023, dated 28.11.2023, passed by the District Magistrate, Jammu, in terms whereof, the detenu-Ghulam Rasool alias Ghulami, S/o Shakur Din, R/o Nardka Panjgrain, Tehsil Nagrota, District Jammu, was detained, is quashed.

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HCP No. 05/2024

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Page 6 of 6

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Accordingly, the respondents are directed to release the detenue from the

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custody forthwith, if he is not required in any other case.

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Detention record be returned to learned counsel for the respondents

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by the Registry forthwith.

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(Sindhu Sharma)
Judge
Srinagar:
14.10.2024
Michal Sharma/PS
Whether approved for reporting : Yes

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Michal Sharma 2024.10.14 16:36 I attest to the accuracy and integrity of this document

Ghulam Rasool Alias Ghulami Th Gafoor v. U T of J and K Th Commissioner Secretary Home Deptt and Others

Case brief

What is this about?

What did the court decide?

Ghulam Rasool Alias Ghulami Th Gafoor v. U T of J and K Th Commissioner Secretary Home Deptt and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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