Jammu & Kashmir High Court Quashes Detention Order, Rules Power to Detain Is Not A Power To Punish For Offence

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Jammu & Kashmir High Court in the case of Bunny Gupta vs. the State of Jammu And Kashmir quashed the detention order passed at the behest of the police and ruled that the power to detain a person does not give the power to punish as well. The detention of the petitioner ordered by the District Magistrate, Jammu vide its Order No. 03 of 2019 dated 15.04.2019 was the subject matter of challenge in this petition.

The District Magistrate of Jammu, in the exercise of powers conferred by Section 8(1)(a) of the Jammu & Kashmir Public Safety Act, 1978, has directed detention of the petitioner in the Central Jail, Kote Bhalwal, Jammu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The detention was ordered by the District Magistrate, Jammu inter alia on the ground that the petitioner is a notorious/habitual hard-core criminal having been involved in series of criminal cases regarding which as many as 7 FIRs in the Police Stations of R.S.Pura, Akhnoor and Miran Sahib have been registered.

Petitioner’s Arguments

The Petitioner has called in question the order of detention primarily on the following grounds:-

(i) That the detaining authority has not communicated the Petitioner the grounds of detention nor was he ever made to understand the accusations and the allegations contained in the grounds on the basis of which his detention has been ordered.

(ii) That the detention order has been executed by one Sub Inspector Shakeel Ahmed and there is no certificate on oath given by the aforesaid Officer whereby it could be established that the grounds of detention were explained to the Petitioner in the language he understands.

(iii) That the relevant material, particularly, the police dossier, which was relied upon by the detaining authority for issuing the order of detention was never supplied to the Petitioner.

(iv) That the grounds of detention are totally irrelevant and vague and do not constitute sufficient material on the basis of which the detaining authority could derive the satisfaction with regard to the necessity of placing the Petitioner under detention.

(v) That the detention order earlier passed by the detaining authority on the same grounds was quashed by this Court and therefore, there was no new material to put the Petitioner under detention. The detention on the self-same grounds is, thus, not sustainable.

(vi) That the impugned order also suffers from non-application of mind.

(vii) That the impugned order passed by the District Magistrate which was required to be mandatorily approved by the Government within 12 days from the date of its passing, has not been approved by the Government and therefore, further detention of the Petitioner pursuant to the impugned detention order is bad in the eyes of law.

Defendant’s Arguments

The detaining authority, on the basis of the material before it, arrived at a conclusion that given the nature of activities, the Petitioner has been indulging in criminal activities consistently over a period of time and due to that, it was necessary to place him under the preventive detention with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. It is on the basis of these grounds, the action of detention appears to have been arrived by the detaining authority with regard to the necessity to put the Petitioner under detention.

Jammu & Kashmir High Court, Prohibiting Use Of Pellet Guns, Power to Detain Is Not A Power To PunishThe detaining authority has given the details of the criminal cases registered against the Petitioner and the nature of involvement of the Petitioner. On the basis of the material supplied by the Police in the form of a dossier, the detaining authority has concluded that the Petitioner is an incorrigible and dreadful criminal, who has caused mayhem in bringing about instability in public order.

Court’s Decision

Hon’ble Justice Sanjeev Kumar said

“Having heard learned counsel for the parties and gone through the pleadings, I am of the view that the order of detention impugned in this petition is liable to be quashed on the solitary ground that despite the number of grounds specifically raised by the Petitioner in his petition, the detaining authority has chosen not to file an affidavit in rebuttal. The Senior Superintendent of Police, Jammu who might have supplied the requisite material in the shape of the dossier to the detaining authority is not a person competent to depose on behalf of the detaining authority”.

The court further added that the impugned order, which is primarily based on the solitary fact that the petitioner is a habitual offender and is involved in several criminal cases is bad in the eyes of law and clearly falls foul of Article 22 of the Constitution of India.

Justice Sanjeev Kumar further added,

“It is not only surprising but, shocking to note that the District Magistrate, Jammu, who, while passing the order of detention, which resulted in curtailing the liberty of the Petitioner, has conveniently shifted the burden of defending its order on the Senior Superintendent of Police”.

The Court finally allowed the petition and quashed the order of detention. The respondents are directed to release the Petitioner forthwith, provided he is not required in any other case.


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