JUDGMENT

RAHUL BHARTI, J. –

01. Heard learned counsel for the petitioner as well as Mr. Rajesh Thappa, learned AAG for the respondents. Perused the pleadings and the record therewith. Also perused the detention record produced by Mr. Rajesh Thappa, learned AAG.

02. The petitioner – Sumit Jandyal, acting through his father – Om Parkash Gupta is invoking writ jurisdiction of this Court under article 226 of the Constitution of India seeking a writ of habeas corpus for restoration of his personal liberty which has come to be curtailed with effect from 10.05.2024 pursuant to exercise of preventive detention jurisdiction under the Jammu & Kashmir Public Safety Act, 1978.

03. The respondent No. 3 – Senior Superintendent of Police (SSP), Samba addressed a communication No. Legal/PSA/2024/ 870-73 dated 01.05.2024 to the respondent No. 2 – District Magistrate, Samba thereby laying a dossier with respect to the petitioner seeking his preventive detention under the Jammu & Kashmir Public Safety Act, 1978 by referring to the activities of the petitioner as cited in the dossier highly prejudicial to the maintenance of public order.

04. In the said dossier, the respondent No. 3 - Senior Superintendent of Police (SSP), Samba came to portray the petitioner to be a notorious, hard-core and habitual criminal involved in many criminal offences including attempt to murder, assault by using sharp edged weapons in carrying out the criminal activities and thereby terrorizing the innocent citizens rendering his activities being highly prejudicial to the maintenance of public order. The petitioner is alleged to be operating a gang branded as “Gataru Gang” with involvement of his brother and in rivalry with opposite Gang known as “Khouf Gang”.

05. The petitioner’s alleged record of criminal activities are related to FIR No. 52/2O24 U/S 399 IPC, 3/4/25 Arms Act of P/S Vijaypur, FIR No. 67/2006 U/S 341/323/147 RPC of P/S Vijaypur, FIR No. 15/2017 U/S 353/332/147 RPC of P/S Vijaypur, FIR No. 71/2019 U/S 341/323/34/427/506 RPC of P/S Vijaypur, FIR No. 177/2016 U/S 409/403/120-B RPC of P/S Gandhi Nagar and lastly proceedings under section 107/117 Cr. P.C. of P/S Vijaypur.

06. The respondent No. 2 – District Magistrate, Samba without availing even breathing time at his end came forward with an instant issuance of a detention Order No. 15/PSA of 2024 dated 02.05.2024 next morning ordering preventive detention of the petitioner under section 8 of the Jammu & Kashmir Public Safety Act, 1978 in order to prevent the petitioner from indulging in activities in any manner highly prejudicial to the maintenance of public order. The petitioner was ordered to be detained in District Jail, Kathua.

07. The aforesaid detention Order No. 15/PSA of 2024 dated 02.05.2024 is purportedly based upon the grounds of detention formulated by the respondent No. 2 – District Magistrate, Samba in order to come up with a subjective satisfaction that the acts of omission and commission alleged against the petitioner afforded a subjective satisfaction for ordering his preventive detention.

08. The grounds of detention so set out by the respondent No. 2 – District Magistrate, Samba and the dossier submitted by the respondent No. 3 – Senior Superintendent of Police (SSP), Samba are carbon copy of each other in text and context leaving no basis to differentiate the two, factually & legally.

09. The preventive detention Order No. 15/PSA of 2024 dated 02.05.2024 passed by the respondent No. 2 – District Magistrate, Samba came to be approved by the Govt. of UT of Jammu & Kashmir through its Home Department vide Govt. Order No. Home/PB-V/963 of 2024 dated 07.05.2024. At the time of passing of this Govt. Order No. home/PB-V/963 of 2024 of approving the preventive detention Order No. Order No. 15/PSA of 2024 dated 02.05.2024, the arrest and detention of the petitioner had not taken place as it was on 10.05.2024 that the petitioner came to be arrested and detained in execution of detention warrant by Inspector Zaheer Mushtaq, No. EXJ109377 of Police Station Vijaypur and handed over the person of the petitioner to the Superintendent District Jail, Kathua for confinement and custody. The petitioner is alleged to have been handed over with 79 leaves’ compilation of documents related to his preventive detention order against receipt taken from the petitioner. The formality of reading and explaining the detention order and the grounds of detention is said to have been carried out by Inspector Zaheer Mushtaq of Police Station Vijaypur at the time of carrying out the arrest and detention of the petitioner.

10. It is on 16.05.2024 that the petitioner came forward with the institution of the present writ petition challenging his detention as being misconceived and unwarranted as an attempt to overreach the ordinary course of law already set into effect against the petitioner for all the cases put up against him before the criminal courts of law.

11. The preventive detention case of the petitioner came to be referred to the Advisory Board for it opinion, which in terms of its opinion report dated 31.05.2024 reckoned the petitioner’s preventive detention justified, thus paving a way for approval of the preventive detention order No. 15/PSA of 2024 dated 02.05.2024 by virtue of a Govt. Order No. Home/PB-V/1295 of 2024 dated 12.06.2024which confirmed the detention of the petitioner to last at the first instance for a period of three months upto 09.08.2024.

12. Before passing of this confirmation order, the petitioner’s custody came to be shifted from District Jail, Kathua to District Jail, Poonch by virtue of Govt. Order No. Home/PB-V/1253 of 2024 dated 10.06.2024.

13. Upon expiry of the first three months of detention period on 09.08.2024, the period of detention of the petitioner came to be extended by another three months with effect from 10.08.2024 to 09.11.2024 in District Jail, Poonch by virtue of Govt. Order No. Home/PB-V/1622 of 2024 dated 07.08.2024 which period of detention is still in its currency when this writ petition has come up for its adjudication with respect to the legality of the preventive detention of the petitioner.

14. The petitioner has, thus, served detention custody of five months soon to be completed, out of maximum one year period of detention prescribed with respect to maintenance of public order in terms of section 18(1)(a) of J&K Public Safety Act, 1978.

15. The petitioner has assailed his preventive detention on number of grounds by drawing reference from the judgments of the Hon’ble Supreme Court of India as well as of this Court referred in the writ petition itself.

16. The essence of the challenge to his preventive detention by the petitioner is that the respondent No. 2 – District Magistrate, Samba and the respondent No.3 – Senior Superintendent of Police (SSP), Samba have intended to serve a punitive custody and confinement upon the petitioner displacing the outcome of the criminal trials in currency in all the cases as mentioned in the dossier read with the grounds of detention, all of which are in the realm of law and order and not in the arena of maintenance of public order.

17. The petitioner has assailed the preventive detention being an outcome of mechanical exercise at the end of the respondent No. 3 – Senior Superintendent of Police (SSP), Samba by reference to the cases which do not provide any link whatsoever with maintenance of public order and that while the petitioner was still in a judicial custody, the detention order came to be passed without any realization to said fact at the end of the respondent No. 3 – Senior Superintendent of Police (SSP), Samba and the respondent No. 2 – District Magistrate, Samba.

18. In order to lend support to the grounds of challenge, the petitioner has referred to the citations of Hon’ble Supreme Court of India in Rajesh Vashdev Advani V. State of Maharashtra, (2OO5) 8 SCC 4388,Rajendra Kumar V. State of Gujarat, AIR 1988 SC 1255,Mehboob V. Police Commissioner, AIR 1989 SC 18O3,Huidrom Konungjao Singh V. State of Manipur; (2012) 7 SCC 181, Manjit Singh Grewal V/s Union of India, 1990 (Supp) SCC 59, Kubic v. Union of India, (1990) 2 SCJ 132, Additional Secretary V. Alka, (1992) Supp (1) SCC 496,Kamlesh Kumar Ishwardas Patel V. Union of India, (1995) 4 SCC 51, N. Sengodan V. State of Tamil Nadu, (2013) 8 SCC 664,K.Kalawati V. State of Tamil Nadu, (2006) 6 SCC 14 & A.K. Gopalan V. State of Madras, AIR I950 SC 27.

19. From the end of the respondents, the writ petition filed by the petitioner has come to be contested by a counter affidavit dated 18.07.2024 which more or less follows the tone and tenor of the dossier as well as the grounds of detention related to the preventive detention of the petitioner. In the counter affidavit, it is admitted that the petitioner came to earn an interim bail in connection with his arrest in FIR No. 52/2024 registered with the Police Station Vijaypur granted by the court of the Chief Judicial Magistrate, Samba in terms of an order dated 09.05.2024 and that is how the execution of the preventive detention warrant came to take place against the petitioner on 10.05.2024.

20. When this Court peruses the record, the fact comes out that the respondent No. 3 – Senior Superintendent of Police (SSP), Samba has come to refer to the fact of the petitioner being in police custody in connection with his arrest in relation to FIR No. 52/2024 of the Police Station Vijaypur but without any full disclosure as to when he came to be so arrested and is his custody under police remand or judicial remand for the consumption of information of the respondent No. 2 – District Magistrate, Samba to assess the situation in totality under the compulsion of which the preventive detention of the petitioner was being solicited by the respondent No 3 – Senior Superintendent of Police (SSP), Samba. In fact, there is no factual input whatsoever coming forth or available in the dossier that the respondent No. 3- Senior Superintendent of Police (SSP), Samba was himself made aware of or apprised as to whether the petitioner had applied and pressed for his bail in reference to FIR No. 52/2024 before a criminal court or not.

21. This information may seem to be very innocuous so as to have no relevance in the estimate of the respondent No. 3 – Senior Superintendent of Police (SSP), Samba to be known to him for the purpose of being shared with the respondent No. 2 – District Magistrate, Samba but in the context of exercise of preventive detention jurisdiction aimed against a person even this bit of information is too important to be left out from being known and being made known to the preventive detention order making authority.

22. Therefore, it is probable that the respondent No. 3 – Senior Superintendent of Police (SSP), Samba was fully aware of the fact that the petitioner had applied for his bail before a criminal court of law in connection with his arrest by reference to FIR No. 52/2024 which was likely to be granted to him and, therefore, in order to pre-empt the release of the petitioner on bail, the respondent No. 3 – Senior Superintendent of Police (SSP), Samba planned to generate a dossier against the petitioner in order to somehow chain him in confinement in order to frustrate his prospective release on bail by a criminal court of law.

23. It is not a co-incidence that the respondent No. 3 – Senior Superintendent of Police (SSP), Samba came forward with a dossier dated 01.05.2024 which earned the preventive detention order dated 02.05.2024 and as soon as the petitioner came to earn bail on 09.05.2024, he came to be pounced upon and detained pursuant to preventive detention order so passed against him. It is this factor which has vitiated the preventive detention custody of the petitioner because the latent intent of the preventive detention of the petitioner was to overreach the ordinary procedure of criminal law and thereby inflict punitive like custody and confinement against the petitioner as a sentence by resort to executive fiat under the garb of preventive detention jurisdiction. But for this act of omission and commission on the part of the respondent No. 3 – Senior Superintendent of Police (SSP), Samba in deliberate withholding of a vital factual aspect of the case related with the petitioner, this Court might have considered salvaging the preventive detention pronounced upon the petitioner.

24. In the light of the aforesaid facts and circumstances of the case, the preventive detention of the petitioner is, thus, held to be vitiated with an illegality of un-condonable nature thereby rendering the preventive detention Order No. 15/PSA of 2024 dated 02.05.2024 passed by the respondent No. 2 – District Magistrate, Samba read with consequent approval and conformation orders passed by the Govt. of UT of Jammu & Kashmir with respect to the preventive detention of the petitioner as illegal, warranting restoration of public liberty to the petitioner. Therefore, this Court quashes the said preventive detention order No. 15/PSA of 2024 dated 02.05.2024 along with approval and conformation order/s and directs release of the petitioner from the preventive detention custody by the concerned Superintendent of the District Jail, Poonch or in whichever Jail the petitioner may be confined in furtherance of the preventive detention order hereby being set aside.

25. Record file submitted by Mr. Rajesh Thappa, learned AAG upon being scanned to be returned to him by the Registry of this Court.

Order accordingly.

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