High Court Orders To Release GOLA SHAH Provided His Custody Not Required In Any Other Case

Jammu, September 21: In WP(Crl) No. 21/2022 titled Ravinder Kumar Gupta vs Union Territory of J&K and others afterb hearing HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE ordered as:-

1. In this writ petition filed through his son, the petitioner has questioned the detention order No. 06/2022 dated 25.05.2022 issued by respondent No. 2, whereby the petitioner has been detained under section 8(1)(a) of the Jammu and Kashmir Public Safety Act, 1978 (for short the Act).

2. It is stated that on 18.05.2022, an FIR No. 53/2022 for commission of offences under section 420, 467, 468, 504 and 506 IPC was registered by the Police of Police Station, Gangyal, Jammu and the petitioner was arrested in connection with the said FIR.

The petitioner filed a bail application, that was opposed by the Police and the same was rejected on 25.05.2022. On 26.05.2022 after the expiry of seven days Police remand, the petitioner was produced before the concerned Magistrate and at that time, the detention order dated 25.05.2022 passed by respondent No. 2 was brought to the notice of the learned Magistrate as well as the petitioner. The

The petitioner was taken to Kot Bhalwal Jail on 26.05.2022 and a copy of the detention order along with communication dated 25.05.2022 was supplied to the petitioner informing him about his detention order and grounds of detention and dossier dated 21.05.2022 were also furnished to the petitioner.

4. Counter affidavit has been filed by the respondents, in which it has been stated that none of the constitutional, statutory or any other legal right of the petitioner has been violated by the issuance of order of detention as the same was issued after taking into consideration the prejudicial activities of the petitioner, so as to deter him from acting or indulging is such activities.

It is stated that the detenue is involved in numerous criminal activities, which are considered prejudicial to maintenance of public order as 21 FIRs have been registered against the petitioner, right from 2006 to 2022, details of which are as under:

1. Case FIR No. 27/2002 U/s 447, 379 RPC of P/S Gangyal 2. Case FIR No. 61/2004 U/s 447 and 147 RPC of P/S Gangyal 3. Case FIR No. 95/2006 U/s 420 and 120-B RPC of P/S Gangyal 4 Case FIR No. 101/2006 U/s 420 RPC of P/S Gangyal 5 Case FIR No. 103/2006 U/s 420 RPC of P/S Gangyal 6 Case FIR No. 09/2007 U/s 420 and 447 RPC of P/S Gangyal 7 Case FIR No. 24/2007 U/s 420 RPC of P/S Gangyal 8 Case FIR No. 53/2005 U/s 341, 323 and 385 RPC of P/S Channi Himmat 9 Case FIR No. 57/2006 U/s 353, 447-A and 34 RPC of P/S Channi Himmat 10 Case FIR No. 09/2007 U/s 467, 468, 471 and 447 RPC of P/S Channi Himmat 11 Case FIR No. 128/2005 U/s 405 and 446 RPC and 3/25 Arms Act of P/S Bahu Fort 12 Case FIR No. 163/2011 U/s 420, 467, 468, 471 and 120-B RPC of P/S Gangyal 13 Case FIR No. 171/2011 U/s 341. 504 and 506 RPC of P/S Gangyal 14 Case FIR No. 31/2012 U/s 419, 420, 467, 468, 471 and 120-B/34 RPC P/S R. S. Pura, Jammu 15 Case FIR No. 42/2012 U/s 453, 471, 464, 469, 504, 506, 352, 341 and 120- B of RPC, 3/25 Arms Act of Police Station, Gandhi Nagar, Jammu 16 Case FIR No.52/2021 U/s 420 RPC of Police Station, Gangyal 17 Case FIR No. 19/2011 U/s 420, 120-B RPC of Police Station, Crime Branch, Jammu 18 Case FIR No. 6/2019 U/s 419, 420, 465, 467, 468, 471 RPC of Police Station, Crime Branch, Jammu 19 Case FIR No. 182/2021 U/s 409 and 120-B IPC of P/S Channi Himmat 20 Case FIR No. 42/2022 U/s 420, 467, 468, 452, 323, 504 and 506 IPC of P/S Bahu Fort, Jammu 21 Case FIR No. 53/2022 U/s 420, 467, 468, 504 and 506 IPC P/S Gangyal

As the ordinary law has not been proved to be adequate to deter him from indulging in repeated acts of such nature, the law enforcing agency was left with no option but to request respondent No. 2 to detain the petitioner under the provisions of the Act.

Accordingly, the respondent No. 2 after perusing the report of the sponsoring agency while exercising the powers  conferred under section 8(1)(a) of the Act, issued the detention order in question whereby the detenue was directed to be lodged in Central Jail Kot Bhalwal, Jammu for a maximum period with a view to prevent him from indulging in such activities.

It is further averred that the petitioner was arrested in FIR No. 53/2022 and as there was every apprehension that the detenue would secure bail and start his criminal activities again, so to prevent him from indulging in such activities again, the order of detention was issued.

Lastly, it is stated that the provisions of the Act have been complied in its letter and spirit while issuing the order of detention.

5. The petitioner, in response to the counter affidavit filed by the respondents, filed a supplementary affidavit, in which factum of submitting representation was pleaded by the petitioner.

6. Mr. Sakal Bhushan, learned counsel for the petitioner submitted that the activities considered by the respondent No. 2 to be prejudicial to the maintenance of public order do not fall within the realm of activities prejudicial to the maintenance of public order as defined in section 8(3)(b) of the Act.

He further laid much stress that the detention order suffers from the vice of non application of mind, as in all FIRs there are no allegations against the petitioner regarding stabbing, rioting and further having links/association with other criminals.

He further argued that the non application of mind by the respondent No. 2 is evident from the fact that while issuing the order of detention, there is no whisper in the order of detention about the fact that the petitioner was already in custody at the time of issuance of detention order.

Mr. Bhushan further argued that no missing revenue record has been recovered from the petitioner as falsely alleged in FIR No. 122/2021. 5 WP(Crl) No. 21/2022

7. Mr. Amit Gupta, learned AAG representing respondents vehemently argued that the petitioner is a land grabber and has earned notoriety for illegally grabbing the properties of innocent citizens and because of his criminal activities of land grabbing, there was threat to the maintenance of public order, that necessitated the issuance of order of detention against the petitioner.

He further argued that the allegations of land grabbing would fall within the definition of mischief as mentioned in 8(3)(b) of the Act.

In a nutshell, the argument of Mr. Gupta is that the order of detention is to be read in conjunction with the dossier prepared by the respondent No. 3. 8. Heard and perused the record including record of detention.

10. A perusal of the dossier dated 21.05.2022 reveals that the occupation of the petitioner has been mentioned as property dealer/land grabber and in the dossier prepared by the sponsoring agency, the allegations against the petitioner are that he has indulged in land grabbing but simultaneously, it has also been stated that the petitioner has indulged in various criminal activities such as assault, stabbing, rioting, impersonation, possessing fire arms and having close links with criminals.

In the dossier, reference to 21 FIRs as mentioned above, was made but while issuing the detention order, respondent No. 2 has relied upon only 12 cases arising out of FIR No. 95/2006 U/s 420 and 120-B RPC of P/S Gangyal, FIR No. 103/2006 U/s 420 RPC of P/S Gangyal, Case FIR No. 163/2011, U/s 420, 467, 468, 471, 120-B RPC of Police Station, Gangyal, FIR No. 171/2011 U/s 341, 504, 506 RPC of Police Station, Ganyal, FIR No. 31/2012 U/s 419, 420, 467, 468, 471 and 120-B/34 RPC of Police Station, R. S. Pura, FIR No. 42/2012 U/s 453, 471, 464, 469, 504, 506, 352 and 120-B, 341 RPC, 3/25 Arms Act of Police Station Gandhi Nagar, FIR No. 52/2012 U/s 420 RPC of Police Station, Gangyal, FIR No. 19/2011 U/s 420, 120-B RPC of P/S Crime Branch, Jammu, FIR No. 6/2019 U/s 419, 420, 465, 467, 468, 471 RPC of P/S Crime Branch, Jammu, FIR No. 182/2021 U/s 409, 120-B RPC of Police Station, Channi Himmat, FIR No. 42/2022 U/s 420, 467, 468, 452, 323, 504 and 506 IPC Police Station, Bahu Fort and FIR No. 53/2022 U/s 420, 467, 468, 504 and 506 IPC Police Station, Gangyal.

13. In FIR No. 182/2021 registered under sections 409 and 120-B IPC, the allegations were with regard to the missing of some revenue records and an enquiry by the revenue authority revealed that some unknown persons in connivance with concerned revenue officials and also in connivance with some unknown beneficiaries hatched the conspiracy and committed criminal breach of trust and destroyed, damaged and misplaced the vital public documents and official records.

The petitioner also figures as one of the accused and it is alleged that some of the records were also recovered from him. This fact has been seriously disputed by the petitioner during arguments. 

The contravention of law always affects order but before if can be said to affect public order, it must affect the community or the public at large. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Defence of India Act but disturbances which subvert the public order are. A District Magistrate is entitled to take action under Rule 30(1)(b) to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances.

             52. It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”.

One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State.

 It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention.”

25. Also, a perusal of the detention order reveals that the respondent No 2 has not shown his/her awareness about the arrest of the petitioner in FIR No.53/2022 though the arrest of the petitioner in the said FIR has been mentioned in the dossier. 

26. In view of the above, this petition is allowed. Detention order No. 06/2022 dated 25.05.2022 passed by respondent No. 2 is quashed.

Petitioner (detenue) be set free from the preventive custody, provided his custody is not required in any other case.

 

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