While sending a firm, loud and clear message that those who try to disturb the public peace and order even by a single act will not be spared, the Jammu and Kashmir and Ladakh High Court in a simple, straightforward, strict and sagacious judgment titled Babbar Khan vs Union Territory of J&K & others in WP(Crl) No. 29/2021 and CrlM No. 907/2021 that was reserved on 25 November and then finally delivered on December 3, 2021 has recently upheld the detention order of a habitual offender on the adequate grounds that he has been creating a sense of alarm and feeling of insecurity in the minds of people in the area causing a chronic fear among them. The single Judge Bench of Justice Tashi Rabstan who authored this judgment made it abundantly clear that a single act was sufficient enough for detention if it’s shown that such single act warrants an interference that he will repeat his activity in the future too. In this instant case, the accused petitioner had nine FIRs registered against him in various police stations and has been previously booked under the Public Safety Act, 1978 in 2018.
To start with, this learned, laudable, landmark and latest judgment authored by a single Judge Bench of Justice Tashi Rabstan sets the ball rolling by first and foremost putting forth in para 1 that, “Impugned in this petition is Order No.05 of 2021 dated 05.05.2021 issued by the District Magistrate, Jammu, respondent No.2 herein, whereby Babbar Khan, petitioner herein (for brevity, detenu), has been placed under preventive detention so as to prevent him from acting in any manner prejudicial to the maintenance of the public order.”
While dwelling on the petitioner-detenu contention, the Bench then lays bare in para 2 that, “The case as set up by the petitioner-detenu is that respondent No.2 while slapping preventive detention of detenu has not adhered to the constitutional safeguards available to him under the Constitution of India as well as the J&K Public Safety Act, 1978. It is contended that the petitioner has been implicated in false and frivolous FIRs and that the detaining authority has issued the detention order without application of mind by not mentioning that he was already in custody in FIR No.91/2021 at the time of passing of the impugned detention order, which fact has not been disclosed in the grounds of detention. Further, it is contended that the detenu has already made a representation against his detention; however, the respondents have not intimated him about the fate of his representation. It is also averred that the allegation with regard to the association of petitioner, as alleged in the grounds of detention, as well as the status of FIRs, which have been made basis for issuing the detention order, have not been disclosed. Even the material documents relied upon by the respondents, upon which the detention order has been issued, have not been supplied to the petitioner-detenu. To cement his arguments, learned counsel for detenu has placed reliance on a case, bearing WP(Crl) No.26/2021, titled as, Pritam Singh vs UT of J&K, decided on 09.11.2021.”
On the contrary, the Bench then also lays bare in para 3 that, “Respondent No.2 in the counter affidavit resisted the contentions of petitioner-detenu averring therein that the aim of preventive detention is to stop the illegal activities of an individual which otherwise cannot be stopped when such an individual creates havoc in the society which leads to public disorder, peace, stability and in certain cases also raises alarm bells regarding the nation’s unity and integrity. It is averred that the petitioner-detenu falls under the category of being a threat to the public order, peace and stability in the society, thus, falls under the category of Section 8 of the Public Safety Act. In support of his contentions, respondent No.2 has also relied upon a judgment of the Apex Court, titled as, Union of India vs Simple Happy Dhakad as well as a judgment of the Division Bench of this Court in Miyan Abdul Qayoom vs Union Territory of J&K.”
To put things in perspective, the Bench then envisages in para 5 that, “A perusal of the record reveals that the Incharge Police Station Nowabad, Jammu moved an application before the learned 3rd Additional Munsiff/JMIC, Jammu for execution of detention warrants of petitioner-detenu, as he was already lodged in District Jail, Ambphalla, Jammu on judicial remand in case FIR No.91/2021 under Sections 307/34 IPC read with Section 3/25 Arms Act registered at Police Station Gandhi Nagar, Jammu. The learned Magistrate while accepting the application directed the Superintendent, District Jail Ambphalla to hand over the custody of accused-detenu to SI Amreek Singh of Police Post Talab Tillo, Jammu after completing the formalities. The record so produced reveals that the petitioner-detenu under his signatures received a total of 112 leaves including the copy of detention warrant, grounds of detention, notice of detention, copy of dossier and other related documents through executing officer PSI Amreek Singh, which were read over and explained to the detenu in Urdu language which he fully understood. The petitioner-detenu was also informed that he can make a representation to the Government as well as to the detaining authority against his detention order, if he so desires. Therefore, the contention of petitioner with regard to non-disclosing of the fact that he was already in custody in FIR No.91.2021 as well as non-supply of material documents is not sustainable as the documents were received by the petitioner-detenu under his own signatures.”
Be it noted, the Bench then enunciates in para 6 that, “Although right of personal liberty is most precious right, guaranteed under the Constitution, which has been held to be transcendental, inalienable and available to a person independent of the Constitution, yet the personal liberty may be curtailed, where a person faces a criminal charge or is convicted of an offence and sentenced to imprisonment. A person is not to be deprived of his personal liberty, except in accordance with procedures established under law and the procedure as laid down in Maneka Gandhi v. Union of India, (1978 AIR SC 597), is to be just and fair. Where a person is facing trial on a criminal charge and is temporarily deprived of his personal liberty owing to criminal charge framed against him, he has an opportunity to defend himself and to be acquitted of the charge in case prosecution fails to bring home his guilt. Where such person is convicted of offence, he still has satisfaction of having been given adequate opportunity to contest the charge and also adduce evidence in his defence. However, framers of the Constitution have, by incorporating Article 22(5) in the Constitution, left room for detention of a person without a formal charge and trial and without such person held guilty of an offence and sentenced to imprisonment by a competent court. Its aim and object is to save the society from activities that are likely to deprive a large number of people of their right to life and personal liberty. In such a case it would be dangerous for the people at large, to wait and watch as by the time ordinary law is set into motion, the person having dangerous designs, would execute his plans, exposing general public to risk and causing colossal damage to life and property. It is, for that reason, necessary to take preventive measures and prevent the person bent upon to perpetrate mischief from translating his ideas into action. Article 22(5) of the Constitution of India, therefore, leaves scope for enactment of preventive detention law.”
Quite rightly, the Bench then also holds aptly in para 7 that, “The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done, but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of likelihood of detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. The Supreme Court in Haradhan Saha vs State of W.B. (1975) 3 SCC 198, points out that a criminal conviction, on the other hand, is for an act already done, which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a Court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case, a person is punished to prove his guilt and the standard is proof, beyond reasonable doubt, whereas in preventive detention a man is prevented from doing something, which it is necessary for reasons mentioned in the Act, to prevent.”
Needless to say, the Bench then adds in para 8 that, “It is long back that an eminent thinker and author, Sophocles, had to say: “Law can never be enforced unless fear supports them.” This statement was made centuries back, but it has its relevance, in a way, with enormous vigour, in today’s society. Every right-thinking citizen is duty bound to show esteem to law for having an orderly, civilized and peaceful society. It has to be kept in mind that law is antagonistic to any type of disarray. It is completely intolerant of anarchy. If anyone flouts law, he has to face the ire of law, contingent on the concept of proportionality that the law recognizes. It can never be forgotten that the purpose of criminal law legislated by the competent legislatures, subject to judicial scrutiny within constitutionally established parameters, is to protect the collective interest and save every individual that forms a constituent of the collective from unwarranted hazards. It is sometimes said in an egocentric and uncivilised manner that law cannot bind the individual actions which are perceived as flaws by the large body of people, but, the truth is and has to be that when the law withstands the test of the constitutional scrutiny in a democracy, the individual notions are to be ignored. At times certain activities, wrongdoings, assume more accent and gravity depending on the nature and impact of such deleterious activities on the society. It is neither to be guided by a sense of sentimentality nor to be governed by prejudices. Acts or activities of individual or a group of individuals, prejudicial to the security of the State, have magnitude of across-the-board disfigurement of societies. No court should tune out such activities, being won over by passion of mercy. It is the obligation of the court to constantly remind itself the right of society is never maltreated or marginalised by the doings an individual or set of individuals propagate and carry out.”
It is worth noting that the Bench then clarifies in para 12 that, “Learned counsel for petitioner has also relied upon a judgment of this Court delivered in WP(Crl) No.54/2020, decided on 01.09.2021, in case, titled as, Balbir Chand vs UT of J&K. In the said case one of the grounds to allow the writ petition was that the detaining authority, i.e., District Magistrate had failed to file the counter to justify the issuance of detention order. The same is not the position herein. Further, although grounds of detention are by and large is replica of dossier, yet one cannot lose sight of the fact that nine FIRs have been lodged against the petitioner-detenu under various sections of the IPC which made basis to book him under the Public Safety Act so as to prevent him from acting in a manner similar to his past acts or engaging in activities prejudicial to security of the State or maintenance of public order. Further, the sponsoring authority has not only supplied the material, viz. dossier, containing gist of the activities of the detenu, but has also supplied the material in the shape of FIRs. All this material was before the detaining authority when it arrived at subjective satisfaction that activities of the detenu were prejudicial to maintenance of public order and requires preventive detention of detenu. Further, if in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed, but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. The same views and principles were reiterated by the Apex Court in Goutam Jain vs Union of India, AIR 2017 SC 230.”
It cannot be glossed over that the Bench then clearly states in para 13 that, “In the present case, the petitioner-detenu seems to be a hard core criminal and has become a terror figure among the people of the area as against him nine FIRs came to be registered in different police stations under various sections of the IPC between the period 2015 to the year 2021. Since the actions taken against the petitioner-detenu under the ordinary law from time to time have not been proved to be deterrent, as such the respondents had no other option but to keep him in preventive detention.”
Without leaving an iota of doubt, the Bench then makes it clear in para 15 that, “Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in The Secretary to Government, Public (Law and Order-F) and another v. Nabila and another (2015) 12 SCC 127.”
Most significantly, while elaborating remarkably with the relevant case laws, the Bench then holds in para 16 that, “The Supreme Court in Debu Mahato v. State of W.B. case (supra), observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given case “one act may suffice”. That was a case of wagon-breaking and given the nature of the Act, it was held therein that “one act is sufficient”. The same principle was reiterated in Anil Dely v. State of W.B. case (supra). It was a case of theft of railway signal material. Here too “one act was held to be sufficient”. Similarly, in Israil SK v. District Magistrate of West Dinajpur (1975) 3 SCC 292 and Dharua Kanu v. State of W.B. (1975) 3 SCC 527, single act of theft of telegraph copper wires in huge quantity and removal of railway fish-plates respectively, was held sufficient to sustain the order of detention. In Saraswathi Seshagiri’s case (supra), a case arising under a single act, viz. attempt to export a huge amount of Indian currency was held sufficient. In short, the principle appears to be this: “Though ordinarily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity.” The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates were held sufficient by the Supreme Court. Similarly, where the person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity.”
Adding more to it, the Bench then states in para 17 that, “If one looks at the acts, the J&K Public Safety Act, 1978, is designed for, is to prevent, they are all these acts that are prejudicial to security of the State or maintenance of public order. The acts, indulged in by persons, who act in concert with other persons and quite often such activity has national level ramifications. These acts are preceded by a good amount of planning and organisation by the set of people fascinated in tumultuousness. They are not like ordinary law and order crimes.”
No less significant is what is then stated so clearly in para 18 that, “In the present case the petitioner has been involved in many criminal activities and against him nine FIRs have been lodged under various sections of the IPC in different police stations. These are FIR No.210/2025 under Sections 307/341/34 RPC registered at Police Station Gandhi Nagar, Jammu regarding causing injury to an auto driver on his left leg by firing; FIR No.70/2015 under Sections 341/382/323 RPC RPC registered at Police Station Peer Mitha, Jammu regarding assaulting and causing serious injuries to the complainant therein and also decamping Rs.42000/- cash; FIR No.22/2016 under Section 341/427 RPC registered at Police Station Bus Stand, Jammu regarding breaking the mirrors of a bus; FIR No.53/2017 under Section 382/341/323 RPC registered at Police Station Peer Mitha, Jammu regarding snatching of Rs.25000/- and gold chain; FIR No.63/2017 under Sections 307/458/147/323 RPC registered at Police Station Nowabad, Jammu regarding causing serious injuries on the head and legs of the complainant therein with tokas with an intention to kill; FIR No.95/2017 under Section 364/323/34 RPC registered at Police Station Bus Stand, Jammu kidnapping and assaulting the complainant therein; FIR No.36/2018 under Section 3/25 Arms Act registered at Police Station Janipur, Jammu; FIR No.13/2020 under Sections 452/387/149/506 IPC registered at Police Station City, Jammu regarding extorting money and FIR No.91/2021 under Sections 307/34 IPC, 3/25 Arms Act registered at Police Station Gandhi Nagar, Jammu regarding making firing at the residential premises of one Nagar Singh. Therefore, it seems the petitioner is a hardcore criminal, has become a terror figure among the people of the area and the actions taken against him under the ordinary law from time to time have not been proved to be deterrent. As per the objections, earlier also in the year 2018 the petitioner-detenu was booked under the Public Safety Act. It seems the petitioner-detenu instead of mending his ways has continuously been indulging in criminal activities and has not shown any respect for the law of the land, as such the petitioner-detenu has created a sense of alarm, scare and a feeling of insecurity in the minds of the public of the area, has become a chronic fear amongst the people of the area. Thus, the activities of the petitioner are of hardcore criminal and habitual of indulging in acts of violence.”
As a corollary, the Bench then holds in para 19 that, “For the reasons discussed above, this petition fails and is, accordingly, dismissed.”
In sum, this brief, brilliant, bold and balanced judgment by a single Judge Bench comprising of Justice Tashi Rabstan has made it clear that even a single act against public peace and order can be sufficient ground for detention. This is more in cases where there is a possibility that the concerned offender will repeat his activity in the future too. Very rightly so!
Sanjeev Sirohi, Advocate