AMJAD KHAN Vs. STATE
LAWS(J&K)-2020-3-44
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 19,2020

AMJAD KHAN Appellant
VERSUS
STATE Respondents


Referred Judgements :-

SYED AASIYA INDRABI V. STATE OF JANDK [REFERRED TO]
HARADHAN SAHA MADAN LAL AGARWALA VS. STATE OF WEST BENGAL [REFERRED TO]
DHARMENDRA SUGANCHAND CHELAWAT VS. UNION OF INDIA [REFERRED TO]
SOPHIA GULAM MOHAMMAD BHAM VS. STATE OF MAHARASHTRA [REFERRED TO]
THAHIRA HARIS VS. GOVERNMENT OF KARNATAKA [REFERRED TO]


JUDGEMENT

Sanjeev Kumar,J. - (1.)The challenge in this petition is thrown to Order No. 09/PSA of 2019 dated 08.08.2019 passed by the District Magistrate, Poonch whereby the petitioner (hereinafter referred to as 'the detenu') has been detained under Section 8(b) of the J&K Public Safety Act, 1978 for a period of three months on the grounds detailed in the grounds of detention simultaneously served upon the detenu. The impugned detention order has been assailed inter alia on the following grounds:-
(i) That the registration of single FIR against the detenu that too on a false and concocted grounds cannot be made the basis to put the detenu under preventive detention.

(ii) That the involvement of the detenu in single incident which is reflected in the FIR No.209 of 2019 cannot constitute threat to the maintenance of public order and may at the most amount to law and order problem for which the substantive law of the land has to take its course.

(iii) That the safeguards envisaged under the J&K Public Safety Act, 1978 and the Constitution of India have not been followed and therefore, the impugned order of detention is vitiated.

(2.)The respondent No.2 has filed the reply affidavit placing the reliance on the judgment of the Hon'ble Supreme Court of India in the case of Haradhan Saha V. State of West Bengal reported in (1975) 3 SCC 198. It is submitted that the purpose of preventive detention is only to detain a person so as to prevent him from acting in any manner prejudicial to the maintenance of public order. Whereas the substantive law is a punitive action where an accused if held guilty is to be convicted and sentenced. He, thus, states that the drawing of parallel between the prosecution in a Court of law and preventive detention is illogical, for, the two operate to achieve two different objectives. It is pleaded that the detaining authority passed the detention order after deriving subjective satisfaction on the basis of the material placed before it by the Police and other agencies of the State. The detenu was handed over the order of detention, the grounds of detention and all other material relied upon by the detaining authority. The matter was then placed before the Advisory Board which opined with regard to the necessity of the putting the detenu in preventive detention. Based on the opinion of the Advisory Board, the Government Home/PB-V/2100 of 2019 dated 01.10.2019 confirmed the order of detention of the detenu. The respondents in their affidavit have also referred to the activities of the detenu including raising of anti-India and pro-freedom slogans viz. 'Hum Kya Chachtya Hain Azadi'. It is stated that the detenu not only indulged in the activities calculated to disturb even tempo of life, but, he instigated others also to indulge in stone pelting on the forces deployed in the area for maintaining peace and order. It is, thus, urged that for the activities of the detenu along with others, an FIR No.209/2019 under Section 124-A/336/353/427 RPC was registered at Police Station, Surankote. In nutshell, the respondents have pleaded that the activities of the detenu were such and his remaining at large would have disturbed the even tempo of life thereby seriously prejudicing public order. It is on these grounds, the respondents have sought to defend the detention order.
(3.)Heard learned counsel for the parties and perused the record.
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