Nazir Ahmad War v. UTof J&K

In this petition, the order of detention, bearing no.DMS/PSA/35/ 2021 dated 05.08.2021, passed by District Magistrate, Srinagar (respondent no. 2) placing namely, Nazir Ahmad War S/o Abdul Kabir War Resident of

Danmer Eidgah, Srinagar (for brevity “detenu”) under preventive detention, is sought to be quashed on the grounds made mention of therein.

Respondents have filed the counter affidavit, insisting therein that the activities indulged in by detenu are highly prejudicial to the maintenance of public order and, therefore, his remaining at large is a threat to the maintenance of public order. The activities narrated in the grounds of detention have been reiterated in the reply affidavit filed by the respondents. The detention record has also been produced by the learned counsel for the respondents to substantiate the averments made in the Reply.

I have heard learned counsel for the parties and considered the matter. I have gone through the detention record produced by counsel for respondents. 2 WP (Crl) no.131/2021

Learned counsel for the petitioner has stated that the allegations in the grounds of detention are vague and indefinite and no prudent man can make an effective representation against these allegations inasmuch as the cases mentioned in the grounds of detention have no nexus with detenu and detaining authority has not given any reasonable justification to pass impugned order of detention. He has further stated that the grounds of detention are replica of dossier and clearly reflect and show non-application of mind on the part of detaining authority and as a consequence of which impugned order of detention is liable to be quashed.

Further learned counsel for the petitioner has vehemently argued that the detaining authority while passing impugned detention order has mentioned in the grounds of detention that detenu is being placed under preventive detention as his activities are prejudicial to the maintenance of public order whereas in the grounds of detention it is mentioned that the activities of the detenu are highly prejudicial to the maintenance of public order as well as security of the UT of J&K, which reflects non-application of mind on the part of detaining authority because detention order is to be issued either for public order or for security of the State but not under both the heads. It is also averred that the detenu is an illiterate person and grounds of detention, served upon him, are based on hyper technical language, which is neither understandable nor communicable to detenu.

In view of the rival contentions of parties and submissions made by the learned counsel for the parties, it would be relevant to go through the detention record. Perusal thereof reveals that grounds of detention are a replica of dossier with interplay of some words here and there. This, thus, shows non-application of mind and in the process of deriving of subjective satisfaction, has become causality. While formulating grounds of detention, detaining authority has to apply it own mind. It cannot simply reiterate whatever is written in the dossier. It is pertinent to mention here that the observations of the Supreme Court in the case of “Jai Singh and ors vs. State of J&K” (AIR 1985 SC 764) which are reproduced hereunder: “First taking up the case of Jai Singh, the first of the petitioners before us, a perusal of the grounds of detention 3 WP (Crl) no.131/2021 shows that it is a verbatim reproduction of the dossier submitted by the Senior Superintendent of Police, Udhampur, to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father’s name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited “The subject is an important member of ……” Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words “the subject is” into “you Jai Singh, S/o Ram Singh, resident of village Bharakh, Tehsil Reasi”. Thereafter word for word the police dossier is repeated and the word “he” wherever it occurs referring to Jai Singh in the dossier is changed into “you” in the grounds of detention. We are afraid it is difficult to find proof of non-application of mind. The liberty of a subject is a serious matter and is not to be trifled with in this casual, indifferent and routine manner.”

This Court in the case of Noor-ud-Din Shah v. State of J&K &Ors. 1989 SLJ 1, quashed the detention order as it was found that grounds of detention was reproduction of the dossier supplied to the detaining authority and held that it amounted to non-application of mind. The Court observed:

I have thoroughly by examined the dossier submitted by the Superintendent of Police, Anantnag, to District Magistrate, Anantnag as also the grounds of detention formulated by the latter for the detention of the detenu in the present case, and I find the said grounds of detention are nothing but the verbatim reproduction of the dossier as forwarded by the Police to the detaining authority. He has only changed the number of paragraphs, trying in vain to give it a different shape. This is in fact a case of non-application of mind on the detaining authority. Without applying his own mind to the facts of the case, he has acted as an agent of the police. It was his legal duty to find out if the allegations levelled by the police against the detenu in the dossier were really going to effect the maintenance of public order, as a result of the activities, allegedly, committed by him. He had also to find out whether such activities were going to affect the public order is future also as a result of which it was necessary to detain the detenu, so as to prevent him from doing so. After all, the preventive detention envisaged under the Act is in fact only to prevent a person from acting in any manner which may be prejudicial to the maintenance of public order, and not to punish him for his past penal acts. The learned District Magistrate appears to have passed the impugned order in a routine manner being in different to the import of preventive 4 WP (Crl) no.131/2021 detention as or detained in the Act, Passing of an order without application of mind goes to the root of its validity, and in that case, the question of going into the genuineness or otherwise of the grounds does not arise. Having found that the detaining authority has not applied his mind to the facts of the case while passing the impugned order, it is not necessary to go to the merits of the grounds of detention, as mandated by Section 10-A of the Act.

From the above settled legal position, it is clear that if grounds of detention and dossier are similar in language, it would tantamount to non- application of mind on the part of detaining authority. As already noted, in the instant case, it is clear from the record that the dossier and the grounds of detention contain almost similar expressions which show that there has been non-application of mind on the part of the detaining authority. The impugned order of detention is, therefore, unsustainable in law on this ground alone.

Learned counsel for petitioner has further stated that grounds of detention make mention of both expressions, viz. “prejudicial to the maintenance of public order as well as prejudicial to the security of UT of J&K”, which reflects non-application of mind on the part of detaining authority. Taking into account this submission of learned counsel for petitioner, it would be appropriate to say that the Government may if satisfied with respect to any person that with a view to prevent him from acting in any manner prejudicial to the maintenance of the public order or the security of the State, make an order directing that the person be detained. When the law providing for preventive detention permits detention of a person whose activities are prejudicial to defence, security of India or security of the State, it will be lawful to detain such person if any of his activities is considered by detaining authority affecting security of the State. [See: A. K. Roy v.

Perusal of relevant case law, thus, would show that “public order” specifies something more than “law and order”. The breach of public order involves a degree of disturbance and it affects upon the life of the community in a locality, which determines whether the disturbance amounts only to breach of law and order and not a public order. The difference between two concepts is in only one degree. An act affecting law and order may not necessarily also affect the public order and an act which might be prejudicial to public order may not affect the security of the State. Public order is synonymous with public safety and tranquillity and it is the absence of any disorder involving breaches of local significance in contradiction to national upheavals, such as revolution, civil strife, war, affecting the security of the State.

In Dr Ram Manohar Lohia v. State of Bihar and others, 1966 AIR SC 740, it has been held by the Supreme Court that any contravention of law 6 WP (Crl) no.131/2021 always affects order but before it can be said to affect public order, it must affect the community or the public at large. It was observed that offences against “law and order”, “public order” and “security of the State” are demarcated on the basis of the gravity. It is the degree of disturbance and its affect upon the life of the community in a locality which determines whether the disturbance amounts only to breach of law and order though in the grounds of detention, the detaining authority had stated that by committing this offence in public, the detenu created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area and thereby acted in a manner prejudicial to the maintenance of public order which affected the even tempo of life of the community. It was held that mere citation of these words in the order of detention was more in the nature of a ritual rather than with any significance to the content of the matter.

The determining test in all such cases is “the act leads to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of society undisturbed”. The expression “law and order”, “public order” and “security of the State” are distinct concepts though always not separate. Every public order if disturbed, must lead to public disorder but every breach of the peace does not lead to public disorder. For example, when two drunkards quarrel and fight there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order. Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic happenings.

As has been said by the Supreme Court in G.M. Shah v. State of J&K, 1980 (AIR) SC 494, the expressions “law and order”, “public order” and “security of the State” are distinct concepts, though not always separate. While every breach of peace may amount to disturbance of law and order, 7 WP (Crl) no.131/2021 every such breach does not amount to disturbance of public order and every public disorder may not prejudicially affect the “security of the State”.

In the present case, detaining authority has made use of both expressions “prejudicial to maintenance of public order” as well as “prejudicial to security of the State”. Impugned detention order, made on the basis of grounds of detention using both expressions by the detaining authority to place detenu under preventive detention, in view of above discussion and well settled law, is held illegal and consequently impugned order is vitiated.

Disposed of.

Registry to return detention record to learned counsel for respondents. (Vinod Chatterji Koul) Judge Srinagar 28.04.2022 (Qazi Amjad) Whether the order is reportable: No. QAZI AMJAD YOUSUF 2022.04.28 15:19